The Kerala High Court dismissed a second appeal filed by a public sector company challenging a decree on counter claim and the dismissal of its suit for recovery against a dealer, holding that the decision involved no substantial question of law as it was based on lack of evidence for the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 25TH DAY OF JULY 2012/3RD SRAVANA 1934
RSA.No. 775 of 2012 () AS.76/2007 of ADDL.District.Court. KOZHIKODE-III IN OS.629/1994 of II ADDL.SUB COURT, KOZHIKODE
APPELLANT(S)/APPELLANT/PLAINTIFF :
THE KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD. VELLAYAMBALAM, THIRUVANANTHAPURAM.
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI
RESPONDENT(S)/DEFENDANT:
G.JOSEPH KURUVILLA PROPRIETOR, RHYTHEM, NO.8 STADIUM COMPLEX, KANNUR, PIN-670 701.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
-------------------------------------------------R.S.A No.775 of 2012
Dated this the 25th day of July, 2012
JUDGMENT
Appellant/plaintiff, a public sector undertaking company filed O.S.No.629 of 1994 in the Court of learned II Additional Sub Judge, Kozhikode against the respondent/defendant, its one time dealer, for realisation of money due under the various transactions. It claimed that Rs.60,749/- was due to it from the respondent as on the date of institution of the suit.
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Rs.51211.61/- was due. While so, the respondent sent letter dated 03/09/1994 disputing claim of the appellant and claiming that the balance amount due to the appellant was only Rs.5,400/- after adjusting the sum of Rs.4,000/- retained by the appellant as security. Respondent sent D.D for the said amount. That amount was accounted. Appellants filed suit for realisation of the balance amount which according to it was due from the respondent.
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received by the appellant by way of security, he sent DD for Rs.5,400/-. It is subsequently attempted to explain that the DD for Rs.5,400/- was sent because the respondent had not then verified the accounts. It is also submitted by the learned counsel that though the respondent claimed to have made payments as per 14 cheques, those cheques are not brought before the court. Instead, the courts below realied on Ext.X1, a photo copy of account of the respondent produced from his Bank.
R.S.A No.775 of 2012 4
to be introduced in evidence. Exts.A4 to A14 were photocopies of the documents (not properly authenticated) for the period from 19841985 to 1992-93. The trial court refused to admit Exts.A4 to A14 in evidence since the same were photocopies and the sufficient foundation for admission of secondary evidence was not laid by the appellant. It also came out that Exts.A4 to A14 were produced in the trial court on the previous day of examination of PW1 on 20/11/1996. What remained is only Exts.A15 and A16, invoices dated 25/07/1991 and 26/09/1991 respectively, for delivery of goods for Rs.3,625/- and Rs.5,134/-, respectively. Those documents revealed payment of the said amount in cash. The courts below observed that Pws. 1 and 2 could not give proper evidence regarding the transactions. Ext.B1 is a letter sent by the appellant which revealed difference in the accounts maintained by the appellant. Apart from that, PW2 stated that the credit notes mentioned in Ext.B1 were not accounted. It is in the above circumstances that the trial court dismissed the suit and decreed the counter claim. The first appellate court while considering the decree on the counter claim held that the amount due to the respondent is Rs.9,888/- and accordingly modified the decree on the counter claim.
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the non-acceptability of documents produced by the appellant it was non suited. Based on the evidence adduced by the respondent, he was giving a decree on the counter claim (which the appellate court has modified). The finding is based on the evidence of the respondent and lack of evidence on the side of the appellant. It involves no substantial question of law.
The second appeal is dismissed.
THOMAS P. JOSEPH, JUDGE
mns
3 issues framed by the court
Whether the second appeal arising from a decision dismissing a suit and confirming a decree on counter claim involves a substantial question of law.
Whether the findings of fact based on lack of evidence on the side of the appellant warrant a second appeal.
Whether the discharge of 14 cheques without physical production due to document destruction bars the finding against the appellant.
KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD
G JOSEPH KURUVILLA
THOMAS P JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
