IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 AS.No. 342 of 1996(A) --------------------- OS.309/1989 OF I ADDL.SUB COURT,ERNAKULAM .................... APPELLANTS/DEFENDANTS: ---------------------------------------- 1. S.A.ALI, M/S.NAVARATHNA MAHAL, CLOTH MERCHANTS, ALUVA. 2. E.H.JAMEELA, DO. DO. DO.(DIED). 3. S.A.RAJAN, DO. DO. DO. ADDL. APPELLANTS: ----------------------------- 4. S.A.SHUKOOR S/O.S.A.ALI OF SANKARANKUZHI NAZARETH, ALUVA. 5. S.A.BASHEER, DO. DO. 6. S.A. HASSAN, DO. DO. 7. NAZEEMA, DO. DO. 8. JASMINE, DO. DO. (ADDL.APPELLANTS 4 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SECOND APPELLANT AND APPELLANTS 1 AND 3 ARE RECORDED AS THE L.RS. OF THE DECEASED SECOND APPELLANT VIDE ORDER DT.22.3.2000 IN C.M.P.1396/2000) BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT/PLAINTIFF: ------------------------------------- T.ABDUL MAJEED, PROPRIETOR, M/S.TEXTILE CENTRE, WHOLESALE CLOTH MERCHANT, BROADWAY, ERNAKULAM. BY ADV. SRI.T.I.ABDUL SALAM. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/07/2010, ALONG WITH A.S.450/1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.Nos.342 & 450 of 1996 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of July, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.A.S.342/1996 arises from O.S.309/1989 and A.S.450/1996 from O.S.278/1989 respectively of the Sub Court, Ernakulam. Those suits were filed by the same person T.Abdul Majeed, a wholesale merchant in textiles. The defendants in O.S.309/1989 are S.A.Ali, his wife and their son Rajan, all shown as having a business concern Navarathna Mahal, a textile business in Aluva. The defendant in O.S.278/1989 is Shukkoor, the son of the first defendant in O.S.309/1989. 2.On the allegation that the plaintiff had passed on goods to the defendants in both the suits, he sued them for recovery of money due under AS342 & 450/96 -: 2 :- independent transactions. 3.The defendants in O.S.309/1989 pleaded that defendants 2 and 3 had nothing to do with the concern Navaratna Mahal and it was the proprietary concern of the first defendant. The defendant in O.S.278/1989 contended that he had nothing to do with M/s.Vimal Saree Kendra and the establishment and M/s.Navaratna Mahals were being taken care of and run by the first defendant in O.S.309/1989 as his proprietary concerns. Accordingly, the defence centred around the denial of transactions as pleaded by the plaintiff. 4.In the aforesaid situation, the defendants themselves moved for transfer of both the suits to the same court and then applied for joint trial of the suits. We do not find any ground on which the joint trial could have been ordered because, barring the identity of the plaintiff and the relationship between the defendants, the identity of the transactions gave rise to different causes of action which could not have been clubbed and put AS342 & 450/96 -: 3 :- to trial jointly. Be that as it may, the defendants invited joint trial on the premise that their defence was apparently common, to wit, the denial of the character of their establishments as pleaded by the plaintiff. They stood to assert that the wife and children of Ali, the first defendant in O.S.309/1989 had nothing to do with the transactions. They also denied the entitlement of the plaintiff to the plaint claim in both the suits. 5.After an elaborate trial taking on record the entire evidence that was tendered in relation to both the suits, the court below concluded that the defence set up in relation to the identity of the establishments is unsustainable and was far from truth. It was concluded that the plaintiff had established the plaint claim. 6.However, a perusal of the judgment would show that the only discussion in relation to the plaint claim in O.S.278/1989 is what is contained in paragraph 11 of the impugned judgment which is merely a AS342 & 450/96 -: 4 :- superficial statement that the defence of the defendant in O.S.278/1989 that Vimal Saree Kendra is only a small retail textile outlet cannot be considered and that the said plea is highly improbable. We are of the view that a reading of paragraph 11 of the impugned judgment might tend to show that the learned Sub Judge was apparently carried away by the finding in relation to the defence in O.S.309/1989 and that probably kept the learned Sub Judge away from going into the further question as to whether the plaintiff had, by legal evidence, proved the plaint claim in O.S.278/1989. 7.In these two appeals, the defendants have challenged the decrees in their entirety. But, when the matter is taken up for hearing, the learned counsel for the appellants submitted that the appeals are filed against both the decrees in their entirety having regard to the possibility of overlapping of findings and to avoid any risk that the defendants may have in confining their appeals only to some of the issues. They, in fact, did not want to generate arguments on principles of res AS342 & 450/96 -: 5 :- judicata in appeals. 8.Pointing out as aforesaid, the appellants' learned counsel submitted that in so far as A.S.342/1996 (arising from O.S.309/1989) is concerned, the evidence does not provide much room for the appellants-defendants to agitate against the findings as to the decree for the principal amount. He accordingly argued that the interest granted at the rate of 18% is exorbitant and even if it is of commercial transactions, the limit should have been much lower. 9.In so far as A.S.450/1996 (arising from O.S.278/1989) is concerned, the learned counsel for the appellant argued that there is no shred of legal evidence to connect the defendant to any claim that the plaintiff has made in the plaint and that even a perusal of the plaint would show that the suit is barred by limitation and still further, the court below has, as we have already noted, not considered the material evidence before mulcting the defendant with the liability under the decree. AS342 & 450/96 -: 6 :- 10.Taking up A.S.450/1996 arising from O.S.278/1989, we find that the plaint proceeds on the basis that amounts due under two sets of transactions are payable by the defendant. Paragraph 2 of the plaint contains a recital that as on 17.4.1986, Rs.58,269.80 was due to the plaintiff on the basis of different credit transactions under which the plaintiff released textile goods to the defendant for the purpose of retail business at Aluva some time in 1984. The second limb of the claim is that on 17.4.1986, the defendant purchased textile goods worth Rs.1,12,964/- on credit and that amounts due regarding that sale is also left unpaid. The suit was presented on 20.5.1989, the date on which the civil courts re-opens after mid summer vacation. 11.On the basis of denial in toto as pleaded by the defendant, we find that the plaintiff had produced certain ledger books maintained by him in the common course of his business. On the basis of those documents, the plaintiff, through his witnesses, attempted to show that goods were AS342 & 450/96 -: 7 :- delivered to the defendant's agent who is stated to be one Basheer who, according to the plaintiff, is the brother of the defendant. We find that no running debtor-creditor account creating is maintained between the plaintiff and the defendant, even on the plaintiff's own showing. None of the documents relied on by the plaintiff is signed by the defendant at least in token of acknowledgment of goods or acknowledging at any point of time, any balance outstandings as alleged. The defendant does not accept that he had received goods through any particular agent, even Basheer. The abundant evidence on record is that the plaintiff had been taking cheques for different transactions from the defendant in O.S.278/1989 and also from the defendants in O.S.309/1989 and that even for smaller amounts, the plaintiff used to collect cheques. We are not, therefore, persuaded to take the view, going by the common course of human conduct, that too, in relation to commercial transactions, that the plaintiff would have parted with goods worth Rs.1,12,964/- on 17.4.1986. In the absence of any specific and reliable documentary AS342 & 450/96 -: 8 :- evidence in that regard, we are unable to assume that the said transaction as pleaded is proved. If that were so, the claim in relation to Rs.58,269.80 which is an independent transaction stood time barred and therefore, the suit on that count also was not liable to be decreed. We also do not find any connecting evidence relating to the quantification of Rs.58,269.80 or any material on the basis of which such amount could be arrived at. The net effect of the discussion that we have made in this regard is that the plaint in O.S.278/1989 is liable to fail in toto. 12.In so far as A.S.342/1996 arising from O.S.309/1989 is concerned, we have already recorded that we need not go into the merits of the transaction as the learned counsel for the appellants very rightly pointed out that on the materials on record, the decree for the principal amount stands. Having perused the evidence with the assistance of the learned counsel on both sides, we are satisfied that the decree in O.S.309/1989 in so far as it relates to the principal amount awarded, AS342 & 450/96 -: 9 :- does not call for any interference. As regards the rate of interest, the learned counsel for the respondent-plaintiff argued that the bills issued carried an endorsement that 18% should be charged for delayed payments and that the practice in business is to charge 18% interest. He also pointed out that the transaction is a commercial one. The conditions imposed at the foot of a bill issued along with the goods do not necessarily bind, in the absence of any appropriate interest at any particular agreed rate, since issuance of the bill runs with the release of the goods and it cannot be taken as an agreed term that the rate of interest on delayed payment would be the rate reflected by such a document. Taking the totality of the facts and circumstances into consideration, we are of the view that interest at the rate 12% per annum would suffice and do complete justice between the parties. In the result, i.A.S.450/1996 is allowed vacating the decree AS342 & 450/96 -: 10 :- in O.S.278/1989 and dismissing the said suit. However, the parties are directed to suffer their respective costs. ii.A.S.342/1996 is allowed in part modifying the impugned decree by reducing the rate of interest to be 12% instead of 18% granted by the court below. The parties are directed to bear their respective costs. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/2107 AS342 & 450/96 -: 11 :- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = A.S.Nos.342 & 450 of 1996 = = = = = = = = = = = = = = = = = Judgment 7th July, 2010.