IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 RSA.No. 801 of 2009() --------------------- AS.80/2005 of ADDL. DISTRICT COURT (ADHOC) I, KOLLAM OS.120/1998 of SUB COURT,KOTTARAKKARA .................... APPELLANT: (APPELLANT-DEFENDANT) ---------------------------------------------------- SUNNY VARGHESE, VILAYIL RUBBERS, RANGE OFFICE JUNCTION, ANCHAL VILLAGE, PATHANAPURAM TALUK, FROM CHARUVILA PUTHEN VEED, MANNOOR, VAYALA MURI, KOTTUKKAL VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.ROY THOMAS (PATHANAMTHITTA) SRI.SHIBU JOSEPH RESPONDENT(S): RESPONDENT: (RESPONDENT-PLAINTIFF) ------------------------------------------------- VARGHESE ABRAHAM, CHEKOTTU JEEVAN BUNGALOW, VEROOR MURI, PATHANAPURAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO. 1740 OF 2009 IN R.S.A. NO.801 OF 2009 DISMISSED SD/-HARUN-UL-RASHID,JUDGE 5.8.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 801 of 2009 ---------------------------------------- Dated this the 5th day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. 80/2005 on the file of the Additional District Court(Adhoc)I Kollam which arises from the judgment and decree in O.S. No. 120/1998 on the file of the Sub court, Kottarakkara. The trial court partly decreed the suit allowing the plaintiff to recover a sum of Rs.98,503/- with interest at the rate of 9% from 27.7.1997 onwards till realisation. The said decree was confirmed by the lower appellate court. Hence the Second appeal. The defendant in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The plaintiff claimed Rs. 98,503/- being the balance amount due from the defendant. According to him, for the period from 11.7.1995 to 14.2.1996 he sold 1709 Kg of rubber sheets worth Rs. 93,995/- at the rate of Rs.55/- per Kg and 406.5 Kg of scrap rubber worth Rs. 16,260/- at the rate Rs.40/- per kg to the defendant . The defendant is a rubber dealer. The defendant paid Rs. 11,752/- from the total amount due. It is further stated by the plaintiff that acknowledging the receipt of the said quantity of rubber and showing the payment of the partly paid amount, the defendant issued Ext.A1 letter dated 19.2.1996 written and signed by him in his own letter pad. Even after repeated demands, the defendant did not pay the balance amount. So the plaintiff issued Ext.A2 lawyer notice, but the defendant not responded. R.S.A. No. 801 of 2009 -2- Hence the suit was filed for realisation of the amount due at the rate of 18% per annum 3. The defendant in the written statement denied the transaction alleged by the plaintiff , issuance of Ext.A1 letter and prayed for dismissal of the suit, 4. on the side of the plaintiff PWs 1 to 3 were examined , ExtsA1 to A5 series were marked. On the defendant's side DWs 1 and 2 were examined and Exts B1 and B2 were marked. 5. The trial court on evidence held that even after the issuance of Ext.A1 the defendant continued to purchase rubber from the plaintiff and for some subsequent transactions the bills were settled by the defendant. The plaintiff as PW1 deposed that the transaction covered by Exts.B1 and B2 was already closed and that his business with the defendant was continued even after Ext.A1. The trial court also held that in such circumstance the burden is upon the defendant to prove that Ext.A1 was not issued to the plaintiff by adducing evidence. The trial court held that non-response of the defendant to Ext.A2 lawyer notice reveals that the transaction alleged in the plaint was true. 6. The version of DW2, Biju George, who is a relative of the defendant, supporting the claim of the defendant, was disbelieved by the trial court. PWs2 and 3 were examined to prove the transaction was there between the plaintiff and the defendant. The trial court also laid emphasis on the versions of PWs 2 and 3 to hold that the plaint claim is true. After considering all the facts, evidence and circumstances the trial court concluded that Ext.A1 was issued by the defendant to the plaintiff and the defendant acknowledged the transaction and the outstanding balance amount. Several ancillary questions R.S.A. No. 801 of 2009 -3- were also considered by the trial court and partly decreed the suit allowing the plaintiff to recover a sum of Rs. 98,503/- with interest at the rate of 9% per annum from 27.7.1997 on wards. 7. In the appeal filed by the defendant/appellant all the questions raised by the defendant were examined and evaluated by the lower appellate court. The lower appellate court held that no reasons are made out by the defendant /appellant for interfering with the judgment of the trial court. The lower appellate court also held that even though the plaintiff claimed 18% interest ,the trial court's award of interest at the rate of 9 % per annum from the date of Ext.A2 legal notice is just and fair, since there is no mention of interest rate in Ext.A1 letter 8. The findings entered by the trial court which was confirmed by the lower appellate are solely on the basis of facts , evidence and circumstances. The important question which was examined by the courts below as to whether there was a transaction between the plaintiff and defendant and if so, what is the amount to be recovered from the defendant at what rate of interest . The courts below on the basis of the facts and evidence entered the right findings which cannot be assailed successfully before this Court in this second appeal . I also agree with the findings of the courts below. No questions of law much less any substantial questions of law arises for consideration in this appeal. There is no scope for invoking the jurisdiction under Section 100 of the C.P.C. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 801 of 2009 ---------------------------- JUDGMENT 5th August, 2009