IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 AS.No. 287 of 1995(D) --------------------- OS.142/1988 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S): -------------- THE TRAVANCORE DEVASWOM BOARD, REP. BY ITS SECRETARY, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.N.MANOJKUMAR SRI.ANCHAL C.VIJAYAN SC FOR TDB SRI.D.SREEKUMAR, SC, TDB SRI.P.GOPAL RESPONDENT(S): --------------- K.R.VENUGOPAL, KOPPILALIL HOUSE, CHERUKOLE MURI, CHERUKOLE VILLAGE. ADV. SRI.M.V.S.NAMPOOTHIRY,V.D.SATHEESAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- A.S.287/1995 -------------------- Dated this the 9th day of January, 2009 JUDGMENT Plaintiff in a suit for realization of money is the appellant herein. The suit was instituted for an amount of Rs.54,625/- inclusive of an amount of Rs.47,500/- + 6% interest thereon from 16.12.1985. The defendant disputed his liability to pay the amount. The Court below found that the plaintiff was entitled to recover the principal amount of Rs.47,500/-, but held that the plaintiff will be entitled to interest at the rate of 6% only from the date of suit. Cost was also not awarded by the Court below. The plaintiff has come up in appeal aggrieved by the denial of interest from the date on which the amount fell due till the date of suit and also by the fact that the Court below had declined to award any cost. 2. Defendant has filed a memorandum of cross objection aggrieved by the decree of the Court below awarding the plaintiff the amount as aforementioned. A.S.287/1995 2 3. I heard Mr.P.Gopal, learned counsel for the appellant and Mr.M.V.S.Nampoothiri, learned counsel for the respondent. 4. The admitted facts are that the defendant participated in an auction conducted by the plaintiff, the Travancore Devaswom Board, on 21.9.1985. The auction inter alia related to a right to conduct hotel No.2 in a permanent building at Malikapuram during the festival season of Mandalam, Makaravilakku and also for Vishu in the Sabarimala Temple in the year 1161 M.E. Defendant was the highest bidder, and his bid for an amount of Rs.2,00,001/- was accepted and the auction was also confirmed in his name. He paid only an amount of Rs.1,52,501/-. An amount of Rs.47,500/- had to be paid on 16.12.1985. It was not so done. Though notice was issued on 18.7.1987 demanding payment of the balance amount, it was not so paid and hence the suit was filed as aforementioned. A.S.287/1995 3 5. Plaintiff also referred to Ext.A5 agreement dated 20.11.1985, relating to the auction of the shop in favour of the defendant and the liability of the defendant to pay the amount as aforementioned. 6. Defendant accepted the fact that he had participated in the auction and that he was the highest bidder and also that the auction was confirmed in his name. Defendant took up the contention that he was called upon to affix his signature in blank stamp papers which were later made use of to bring about Ext.A5 agreement into existence. In other words, defendant denied the execution of Ext.A5. He also took up the contention that the Board had delayed the handing over of building in question by 11 days. The building had to be handed over latest by the 1st of Vrichikom, 1161. But the Board had handed over the same on 11th of Vrichikom. Defendant therefore, lost his facility to conduct business in the building for a period of 11 days A.S.287/1995 4 during the festival season. He further contended that at the time of receiving possession of the building, it was not completed. He therefore, had to spent an amount of Rs.10,000/- for completion of the building. He repudiated his liability to pay the balance amount due under Ext.A5. 7. The Court below found that the stamp papers relating to Ext.A5 agreement was seen to have been purchased on a date subsequent to the date of execution of Ext.A5 agreement. Ext.A5 agreement is dated 20.11.1985 whereas the stamp papers are seen to have been purchased on 18.12.1985 and even thereafter. The Court below therefore, concluded that the defendant's version regarding signed blank stamp papers having been procured from him, seem deserves to be accepted. 8. But nevertheless, the defendant had participated in the auction and his bid was confirmed as well. He had A.S.287/1995 5 proceeded to take possession of the building and admittedly, had conducted business therein during the contracted period. (the dispute was only regarding the first 11 days). In that view of the matter, the defendant's liability to pay the balance amount due as per the auction, was found by the Court below and it is accordingly, the suit was decreed as mentioned above. But finding that the plaintiff has not been able to prove the defendant's liability to pay the amount inter alia from 16.12.1985, the Court below fixed the award of interest from the date of suit. Further finding that the plaintiff has not come to the Court with lean hands in the matter of Ext.A5 agreement, the Court below declined to award costs. 9. I am in agreement with the findings of the Court below both as regards the date of interest and also regarding the exercise of discretion of the Court below declining to award cost. Firstly, the defendant's contention regarding the manner in which Ext.A5 has A.S.287/1995 6 been brought into existence, seems to be correct. The stamp papers in which Ext.A5 has been executed is obviously subsequent to the date shown in the agreement. The liability to pay interest at the rate of 6% is contained in clause 4 of Ext.A5. There is no other material to show or affirm the defendant's liability to pay interest from 16.12.1985. I also take note of the fact that though the plaintiff has taken up the contention that a notice of demand was issued in the year 1987, the same has not been produced before the Court below. The suit itself was filed only on 23.7.1988 almost on the eve of the expiry of the period of limitation. In these circumstances, it cannot be said that the Court below has committed any illegality in restricting the award of interest from the date of suit. I find no grounds to interfere with the said finding of the Court below. 10. The award of costs is essentially a matter of discretion of the Court and since the Court below found A.S.287/1995 7 that Ext.A5 agreement is seen to have been executed on stamp papers which bear a date subsequent to the date of the agreement, it thought it fit not to award cost to the plaintiff, as an exception to the normal rule of costs following the decree. I do not find any grounds to come to a conclusion that the Court below has committed any perversity in declining to award costs. 11. Insofar as the memorandum of cross objection is concerned, I am of the view that the defendant cannot successfully plead exemption from the original liability to pay the amount for which he bid the building. The liability to pay the total amount of Rs.2,00,000/- arises by reason of the defendant's bid having been accepted in the auction conducted on 26.9.1985. It cannot be disputed that the defendant had actually taken the building and had conducted business therein. The dispute is only with regard to the first 11 days of Vrichikom. Assuming for a moment that the defendant obtained the building only after 11 days, it cannot offer A.S.287/1995 8 justification to decline payment of the bid amount. If there was any breach on the part of the plaintiff, it was upto the defendant to claim appropriate damages from the plaintiff. No counter claim as such was made by the defendant in this regard. I do not find any grounds to interfere with the judgment and decree of the trial Court. 12. For all these reasons, I am in agreement with the findings of the Court below on all aspects. I find no merit in this appeal or in the memorandum of cross objection. Appeal and the cross objection are therefore, dismissed. Parties shall bear their respective costs. V.GIRI, Judge mrcs