Dismissed

M.P.Chothy v. Maitheenkunjku

Kerala HC13 Jun 2012RSA/77/2012

Case brief

AI extract

What is this about?

In this second appeal regarding a dispute over damaged timber and alleged misrepresentation, a bench of the Kerala High Court found no substantial question of law. The court upheld the lower courts' finding that there was insufficient evidence to prove the respondents cheated the appellant or misrepresented the timber quality.

What did the court decide?

The second appeal and all pending interlocutory applications were dismissed.

M.P.Chothy Vs Maitheenkunjku — Contract and Commercial Disputes | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 13TH DAY OF JUNE 2012/23RD JYAISHTA 1934

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RSA.NO. 77 OF 2012 ()

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AS.47/2010 OF SUB COURT, PERUMBAVOOR OS.27/2009 OF MUNSIFF'S COURT, KOLENCHERRRY

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APPELLANT/APPELLANT/PLAINTIFF:

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M.P.CHOTHY, AGED 62 YEARS S/O. PAINKAN, MACHERIKKUDY HOUSE PATTAL-PANKULAM ROAD, IRINGOLE KARA PERUMBAVOOR VILLAGE.

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BY ADV. SRI.P.P.JACOB

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RESPONDENT(S)/RESPONDENTS/DEFENDNATS:

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1. MAITHEENKUNJKU, AGED 57 YEARS MALIYAM HOUSE, PALLIPRAM KARA, MUDICKAL.P.O. PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT-683547.

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2. M.M. ALI, AGED 37 YEARS S/O. MAITHEEN KUNU, MALIYAM HOUSE, PALLIPRAM KARA MUDICKAL.P.O., PERUMBAVOOR VILLAGE ERNAKULAM DISTRICT-683547.

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BY ADV. SRI.P.THOMAS GEEVERGHESE

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.77 of 2012

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==================================== Dated this the 13^th day of June, 2012

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J U D G M E N T

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Appellant filed O.S. No.27 of 2009 in the court of learned Munsiff, Kolencherry for recovery of damages from the respondent. Trial court dismissed the suit which the first appellate court confirmed in A.S. No.47 of 2010, Sub Court, Perumbavoor. Hence this appeal.

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Respondents are running a saw mill. Appellant claimed that on 04.09.2007 he demanded timber for making window/door frames, ventilators, almirah, etc., and respondents offered to provide the timber of 'Aval'. Price was fixed as Rs.400/- per c.ft. Requirement of the appellant was 38.3 c.ft. A total sum of Rs.16,300/- was payable to the respondents; Rs.15,320/- being charges for the timber and Rs.980/- being labour charges. Appellant paid Rs.10,300/- in cash and issued cheque for the balance sum of Rs.6,000/- which respondents encahsed on 08.09.2008. The sawn timber was taken to the workshop of P.W.4 for making window/door frames, ventilators, almirah, etc. The sawn timber got ruined, according to the appellant, due to the poor quality of the timber. It is the case of appellant that

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R.S.A. No.77 of 2012

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-: 2 :-

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when he demanded timber from the respondents, they had offered to provide timber of Aval making him believe that it is suitable for making window/door frames, ventilators, almirah, etc. Respondents cheated him by providing low quality timber and thereby caused loss to him. Apart from the amount appellant spent, he claimed Rs.25,000/- for mental agony and Rs.500/towards notice charges.

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Respondents denied the allegations and contended that appellant demanded soft-wood timber from them. They had not offer to supply timber of Aval. They denied that there was any misrepresentation or deception on their part. It is also contended that appellant wanted timber of Aval and as per his demand they supplied it. The timber of Aval if exposed to sun and rain is likely to get damaged. The swan timber supplied to the appellant was kept in an open space without applying chemical to prevent insect attack. Thus the timber got damaged.

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Appellant gave evidence as P.W.1 and testified to his case. P.W.2 is the Advocate Commissioner who prepared Ext.C1, report and P.W.3 is a Carpenter who assisted P.W.2. P.W.4 is the workshop owner examined by the appellant. Exhibit A1 is the notice issued by the appellant. Exhibit A2 is a slip allegedly given

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R.S.A. No.77 of 2012

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by the second respondent at the time of purchase of timber. Exhibit A3 is the receipt for Rs.10,300/- and Ext.A4 is the passbook produced to show that a cheque for Rs.6,000/- was given to and encashed by the respondents. Second respondent deposed as D.W1 and gave contra evidence.

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Trial court rejected the contention of appellant on the ground that there is no evidence to show that respondents had misrepresented or deceived the appellant. That finding was confirmed by the first appellate court.

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It is contended by learned counsel for appellants that respondents have no consistent case. While in the written statement they contended that appellant demanded soft-wood timber, the evidence would show that respondents had provided the sawn timber of Aval. It is also the contention of learned counsel that since the timber was sawn by the respondents in their mill with suitability for making window/door frames, ventilators, alimirah, etc., they cannot be heard to say that they were unaware that the timber was meant for making window/door frames, ventilators, almirah, etc.

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Learned counsel for respondents to whom notice on admission was given has contended that the finding of fact

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R.S.A. No.77 of 2012

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entered by the courts below does not require interference. It is pointed out that what D.W1 stated is only that timber was sawn by the respondents in their mill as per the list given by the appellant.

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Question is whether there is any misrepresentation on the part of the respondents based on which appellant was made to believe that timber of Aval is quality-wise good for making window/door frames, ventilators, almirah, etc., and on account of that representation of respondents, appellant suffered loss.

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Respondents did not admit that they had told the appellant that timber of Aval is quality-wise good for window/door frames, ventilators, almirah, etc. On the other hand evidence of P.W.4, the workshop owner (where the articles were to be made) is that he had told P.W1 even before the transaction with the respondents that 'Aval' was not that much good for making window/door frames, ventilators, almirah, etc., that timber of Aval is used only for making furnitures and that if timber of Aval is brought, he will try. If that be so, I must think that appellant had information about the poor quality of timber of Aval for making window/door frames, ventilators, almirah,

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R.S.A. No.77 of 2012

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etc., even when he placed orders with the respondents. As regards the alleged representation made by the respondents what is available is only the evidence of P.W.1 as against which second respondent has given contra evidence as D.W.1.

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It would also appear that the timber collected from the saw mill of respondents was not properly kept. Learned counsel for respondents tells me from the report of the Advocate Commissioner that the timber was kept in the premises of P.W.4 in an open place though a tarpolin was spread over it. According to the respondents if the timber was not kept in proper condition applying chemical, there is the possibility of insect attack and the timber getting damaged.

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Courts below found that there is no sufficient evidence to show that there was any representation and much less any misrepresentation from respondents or that they cheated the appellant. If that be so, claim of appellant cannot be sustained. Finding of the courts below on the factual dispute rests on fact based on the evidence on record.

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On hearing learned counsel on both sides and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring

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R.S.A. No.77 of 2012

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decision by this Court.

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Second Appeal is dismissed.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

M.P.Chothy v. Maitheenkunjku

Case brief

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M.P.Chothy v. Maitheenkunjku

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