IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 AFA.No. 46 of 1997() -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.464/1992 Dated 24/01/1997 OS.30/1989 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): RESPONDENTS IN THE 1ST APPELLATE COURT & DEFENDANTS INTHE O.S. --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, TRIVANDRUM. 2. DIVISIONAL FOREST OFFICER, TRIVANDRUM. BY GOVERNMENT PLEADER SRI. K.B.RAMANAND RESPONDENT(S): APPELLANTS IN THE 1ST APPELLATE COURT AND PLAINTIFFS IN THE ORIGINAL SUIT: -------------------------------------------------------------------------------- 1. AYISHA BEEVI, W/O.RASHEED, PERUTHIVILA VEEDU, PAPPANAMCODE, PERINGAMALA. 2. NOUSHAD, S/O. RASHEED OF ...DO...DO..... 3. SABEENA, D/O.RASHEED OF ...DO..DO..... BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE, BY ADV. SRI.B.S.SWATHY KUMAR. THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B.RADHAKRISHNAN & P.Q.BARKATH ALI, JJ. ------------------------------------------- A.F.A.No.46 OF 1997 ------------------------------------------- Dated this the 15th day of September, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.This appeal is by the State and the Divisional Forest Officer who are the defendants in a suit for realisation of Rs.30,500/-. The trial court dismissed the suit and the learned single Judge has allowed the appeal of the plaintiff. Hence this A.F.A. 2.The Forest Department conducted a public auction to farm out the right to collect cashew from the cashew plantation in Palode Range. The plaintiff deposited Rs.19,000/- as 1/3rd of the consideration. The period of collection of cashew nuts was from 1.1.1984 onwards, for six months. The plaintiff contended that the confirmation of the sale was not intimated to him before 1.1.1984 and it was confirmed only on 13.3.1984, by which time, due to heavy rain, flowers were destroyed and he did not, therefore, execute the agreement and the collection of cashew nuts could have been done only AFA.46/97 2 after executing the agreement. Re-auction was held on 11.4.1994. The plaintiff challenged it before this Court by filing a writ petition. He was relegated to the trial court. He sued for realisation of Rs.30,500/- with interest at 12% per annum. The State contended that the lease period was up to 31.7.1984 and that there was no necessity to intimate the plaintiff regarding the confirmation of sale before 1.1.1984. It took the stand that after the sale was confirmed, a communication was issued on 25.2.1984 under certificate of posting. It further contended that re-auction became necessary only because the plaintiff failed to deposit the balance consideration. After framing necessary issues, PWs.1 to 3 and DW1 were examined, Exts.A1, A2, B1 and B2 were marked and the suit was ultimately dismissed. 3.Learned single Judge, in the first appeal by the plaintiff, considered whether time was the essence of the contract and whether the contract was frustrated. It was concluded that time was the issuance of the contract which being one for collecting agricultural produce. Reliance was placed on the AFA.46/97 3 decision of this Court in Kesavan v. Antony [1971 KLT 220] and the judgment in A.S.278/86, the facts of which are near similar to the case in hand. Learned single Judge also held that the plaintiff was justified in claiming the amount on the basis of the materials on record. It was also held in terms of the decision of the Apex Court in L.N.S.Ummu Saleema v. R.B.Gujaral [AIR 1981 SC 1191] that the plea that the confirmation of the bid was intimated under certificate of posting was insufficient to deprive the plaintiff of the relief sought for. With the aforesaid, we do not find any legal infirmity in the appreciation of evidence or in the grant of relief by the learned single Judge. The appeal fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.Q.BARKATH ALI, Judge. kkb.17/09.