Appeals were dismissed as there was no merit found. The High Court found no illegality in the decree for recovery of money and damages in the lower court suits, upholding the lower court's findings on evidence and facts.
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 ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937
A.S.No. 415 of 1996
AGAINST THE JUDGMENT IN OS 20/1991 of ADDL.SUB COURT, KOCHI DATED 18-03-1995
APPELLANT/1st DEFENDANT:
M/S DEEPA EXPORT ENTERPRISES,
REPRESENTED BY ITS PROPRIETOR, K.RAMAKRISHNA PILLAI XIX/495, PULLAR DESOM ROAD, PALLURUTHY, COCHIN-6
BY ADV. SRI.C.P.SUDHAKARA PRASAD,
SRI.ELVIN PETER
RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 4:
MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITIES, REGIONAL OFFICE, NEAR PERUMANOOR JETTY, W. ISLAND, ERNAKULAM.
R1 BY ADV. SRI.JACOB VARGHESE R2 BY ADV. SRI.GEORGE CHERIAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29-01-2016, ALONG WITH AS. 418/1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC & A.HARIPRASAD, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.Nos.415 & 418 of 1996
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2016
JUDGMENT
Antony Dominic, J.
These appeals are filed against the common judgment and decree in O.S.20/91 and 36/92 rendered by the Sub Court of Cochin.
The suit was decreed in part entitling the first respondent to recover Rs.1,14,000/- with interest at 12% from the date of suit till the date of decree and thereafter at 6% per annum till realisation. It was further ordered that the appellant shall pay a sum of Rs.72,500/- to the first respondent. Insofar as O.S.36/92 is concerned, the suit was filed by the appellant in A.S.418/96 for recovery of Rs.84,000/- from the respondent.
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By the judgment and decree, the court below dismissed the suit with cost.
It is aggrieved by this common judgment and decree, the appeals are filed.
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the machineries and also damages and value of frozen products of the first respondent.
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the appellant, he was entitled to get Rs.1,12,500/- from the first respondent. However, he limited his claim to Rs.84,000/- and it is on the above factual basis O.S.No.36/92 was filed for recovery of Rs.84,000/- for the respondent. In this case, the respondent defendant entered appearance and denied the entire claim of the plaintiff. According to him, he had not entered into any agreement with the appellant and no amount was also due to him. As we have already stated, after recording the evidence of both sides and considering the materials on record, the court below dismissed the suit.
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respondent as proprietor of the concern. It is stated that though such a contention was raised, the respondent had not adduced any evidence, explaining the manner in which the right of the firm has devolved on him as proprietor. Therefore, according to appellant, the suit ought to have been dismissed on that sole ground.
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appellant also did not file any additional written statement subsequent to the amendment of the plaint. In other words, the appellant did not raise any contention in his pleadings disputing the averments made by the plaintiff, that even at the time of institution of the plaint, he was carrying on the business of the concern in his capacity as the proprietor. It was because of this situation, the court below even did not raise an issue on this. Therefore, having not raised a contention in the pleadings before the trial court and having also not raised any dispute during the arguments of the suit, according to us, it is not open to the appellant to raise the aforesaid contention for the first time before this court in this appeal. Therefore, this contention raised by the counsel for the appellant is only to be rejected and we do so.
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respondent plaintiff was entitled to recover his probable profits from the appellant as damages. Court has placed reliance on Ext.C1, Report of the Commissioner, who inspected the factory on 23.1.91 and 25.1.91. The Report of the Commissioner disclosed that even at that time, the freezer was in use. No contra evidence was adduced by the appellant to disprove the conclusions of the Commissioner. Admittedly, the freezer was not being used for the purposes of the respondent. Therefore, it was established that the freezer was being used for the purposes of third parties. As far as the quantification of the damages is concerned, the court has held that the claim of the first respondent was only Rs.5,000/- per month, which was found to be a reasonable claim. On that basis, the court has quantified the total amount payable for the period from 1.10.1989 to 15.1.1991 and accordingly the court has upheld the claim of the first respondent for Rs.72,500/-. These findings and quantification, according to us, does not suffer from any illegality for interference.
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the first respondent. This claim of the first respondent in A.S.415/96 was considered under issue no.5. It is seen that this claim has been sustained mainly on the basis of Ext.A4. Ext.A4 is a receipt given by the appellant. Reading of Ext.A4 shows that the appellant has acknowledged the receipt of Rs.55,000/- from the first respondent. It was on that basis that this claim was accepted by the trial court, which finding of the court is fully corroborated with the evidence on record.
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first respondent in A.S.415/96 is concerned, the same was not denied or disputed by the appellant in the written statement filed by him. It was in such circumstances, the court below accepted this claim of the respondent. This finding also, according to us, does not suffer from any infirmity for interference in this appeal.
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from his assertion regarding the existence of an oral agreement, which was denied by the respondent in his written statement, there was no other evidence whatsoever to substantiate his plea. It was in such circumstances, the court below had to reject the plaint claim. This conclusion of the court below does not merit interference in this appeal.
For all these reasons, we do not find any merit in both these appeals. Appeals are accordingly dismissed.
Sd/- ANTONY DOMINIC JUDGE
Sd/- A.HARIPRASAD
JUDGE
jes
M/S DEEP EXPORT ENTERPRISES
V.J.CHANDY
THE MANAGER, UCO BANK VELLARATHU
THE DEPUTY DIRECTOR, MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITIES
THE DEPUTY DIRECTOR, EXPORT INSPECTION AGENCY
ANTONY DOMINIC
A. HARIPRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
