IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 AS.No. 206 of 2003 ------------------------------ OS.81/1999 of SUB COURT,THODUPUZHA .................... APPELLANTS/DEFENDANTS & COUNTER CLAIMANTS: 1. METHANATH TEA ESTATE, ELAPPALLY REP BY ITS SOLE PROPRIETOR SRI.M.S.VISWMBARAN (DIED, REP BY L.Rs.) 2. THE SUPERINTENDENT METHANATH TEA ESTATE, ELAPPALLY P.O., MOOLAMATTOM 3. B.RAJI VISWAMBARAN , W/O LATE SRI.VISWAMBARAN METHANATH TEA ESTATE, ELAPPALLY P.O., MOOLAMATTOM 4. M.V.GANESH, S/O LATE SRI.VISWAMBARAN -- DO -- -- DO -- 5. RAKHI ARUN, D/O LATE SRI.VISWAMBARAN -- DO -- -- DO - 6. REKAHA REJI, S/O LATE SRI.VISWAMBARAN -- DO -- -- DO -- 7. JANAKI SANKAR, S/O LATE SRI.VISWAMBARAN -- DO -- -- DO -- BY ADV. SRI.RAJU K.MATHEWS RESPONDENT/PLAINTIFF: A. BABU PROPRIETOR, M/S THE ISHARATH ENTERPRISE, A SOLE PROPRIETORSHIP CONCERN HAVING ITS OFFICE AT 129 BAZAR STREET COONOOR THE NILGIRIS DISTRICT, TAMIL NADU ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & M.L.JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.206 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January 2010 JUDGMENT Basheer, J. Appellant is the defendant in a suit for recovery of money. The suit was instituted by respondent No.1/plaintiff for realisation of a sum of Rs.1,40,465/- with 18% interest from the date of suit till the date of realisation. 2. The averments in the plaint may be briefly noticed: 3. The plaintiff who is a dealer in Tea making Machinary was approached by the defendant agreeing to purchase a “4' E.C.P. Chamber Drier with Siracco No.8 furnace” in exchange of an old 'Down Draft Drier' and 2 Savage Cutters belonging to the latter. The cost of the E.C.P. Chamber with furnace and spares was fixed at Rs.1,65,000/-. Value of defendant's Down Draft Drier was fixed at Rs.55,000/- and the two savage cutters were valued at Rs.10,000/-. Defendants paid a sum of Rs.25,000/- as advance on October 3, 1997. A further sum of Rs.25,000/- was again paid by the defendants to the plaintiff on October 7, 1997. The understanding was that the plaintiff would dismantle the 4' E.C.P. drier with spares available at Kottamalai Tea factory and load them at his expense for transportation to the Tea Estate of the defendants who agreed to bear the transportation and unloading charges. According to the plaintiff, the Drier with the spares, were A.S.No.206 OF 2003 :: 2 :: dismantled and loaded into a vehicle as agreed by him. The defendants transported the same to their factory and unloaded them. Two savage cutters were also delivered. But payment was not made. It was in the above circumstances that the plaintiff claimed a total sum of Rs.1,40,465/- towards the balance amount due from the defendants being the value of the drier, general damages of Rs.5,000/-, interest, etc. 4. In the written statement filed by the defendants, it was primarily contended that the plaintiff had committed breach of the contract in as much as he had failed to get the drier erected at the premises of the Estate as agreed by him. He had also failed to supply the spares, namely 5 numbers of tube lights, 40 numbers of Siracco tubes and 45 numbers of arches which he had agreed to deliver along with the drier. The defendants further contended that they were prepared to pay the balance sum of Rs.50,000/- and to deliver the old Drier as agreed by them provided the plaintiffs erected the drier at their premises as agreed by him. 5. The court below framed the following issues: 1) Whether there was any agreement to instal the plaint mentioned drier in the factory of the first defendant by the plaintiff as stated by the defendants. 2) Whether the plaintiff has performed his part of the contract? 3) Whether the plaintiff is entitled to get the amount claimed in the plaint? 4) Whether the defendants are entitled to get any amount claimed in the counter claim? A.S.No.206 OF 2003 :: 3 :: 6. The plaintiff got himself examined as PW1. Exts.A1 to A20 were marked on his side. DW1 and DW2 were examined on the side of the defendants, though no documents were produced. 7. The court below, after a careful evaluation of the oral and documentary evidence on record, found that the plaintiff had performed his part of the contract as undertaken by him in as much as he had delivered the 4' ECP drier and spares to the defendants. The court below further held that the defendants had failed to deliver the old drier as undertaken by them and failed to pay the balance sum of Rs.50,000/- to the plaintiff. It was noticed by the court below that the value of the old drier which defendants agreed to deliver to the plaintiffs was fixed at Rs.55,000/- and the balance payable by the defendants after adjusting the advance paid by them was Rs.50,000/-. Thus, the court below found that the total sum of Rs.1,05,000/- was liable to be paid by the defendants to the plaintiffs. Accordingly, the court below granted a decree for a sum of Rs.1,05,000/- with interest at the rate of 6% p.a. from the date of suit till the date of realisation with costs. The above decree and judgment are under challenge in this appeal. 8. We have heard learned counsel for the appellant and the respondents and perused the materials available on record. 9. It is not in dispute that the appellants/defendants had agreed to purchase through the plaintiffs the 4' E.C.P. Chamber Drier with Siracco No.8 furnace with spares which were available at Kottamali estate. The value of the above machinery was fixed at Rs.1,65,000/-. The understanding was that the A.S.No.206 OF 2003 :: 4 :: above machinery will be dismantled and loaded in a vehicle at the expense of the plaintiff. The defendants agreed to meet the transportation and unloading charge. 10. However, it was contended by the defendants that the plaintiff was bound to erect the ECP chamber and furnace at their factory premises at their expense. The court below noticed that Ext.A1 did not contain such a clause or stipulation. In Ext.A1, the value of the ECP chamber and furnace was indicated as Rs.1,65,000/-. Similarly, the value of the old Down Draft Drier which was available with the defendant and which was to be given in exchange of the furnace was valued at Rs.55,000/-. The two Savage Cutters were also valued at Rs.10,000/-. As rightly noticed by the court below Ext.A1 did not contain any stipulation that mandated or obligated the plaintiff to erect the furnace at defendant's estate premises. 11. Ext.A2 is a receipt issued by the plaintiff on October 3, 1997 when he received a sum of Rs.25,000/- as advance from the defendants towards the value of the ECP chamber and furnace. Ext.A2 contains further undertaking by the plaintiff to dismantle and load the Chamber at his cost in the vehicle. It is further stipulated that transportation and unloading charges would be met by the defendants. Thus, it is evident from Exts.A1 and A2 that the plaintiff never agreed to meet the erection cost as alleged by the defendants. 12. It is true that in Ext.A8 the plaintiff had indicated that he would make available services of a mechanic for erection of the ECP chamber. What had been stated by plaintiff in Ext.A8 is only that he would send his mechanic to the A.S.No.206 OF 2003 :: 5 :: Estate of the defendant as soon as he completes his other assignments elsewhere. Nothing more nothing less. 13. As mentioned earlier, in the the written statement itself the defendants had conceded that they were prepared to pay the balance sum of Rs.50,000/- towards the value of the ECP Chamber and also to deliver the old Drier as agreed by them on condition that the plaintiff met the erection cost. But the records and the evidence of the parties will clearly reveal that the plaintiff had never agreed or undertaken to erect the ECP chamber and furnace at his cost. 14. In that view of the matter, the court below, in our view, was justified in directing the defendants to pay the balance towards the value of the ECP Chamber and Furnace and also the value of the old Drier which the defendants had undertaken to deliver to the plaintiff in exchange of the ECP Furnace. We do not find any illegality in the view taken by the learned Judge. No interference is warranted with the decree and judgment passed by the court below. The appeal is devoid of merit. Therefore, the appeal is dismissed. In the peculiar facts and circumstances, there will be no order as to cost. A.K.BASHEER, JUDGE M.L.JOSEPH FRANCIS, JUDGE jes A.S.No.206 OF 2003 :: 6 :: A.K.BASHEER & M.L.JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.206 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 5th January 2010