The Thrissur Co-Operative Bank Vs M/S. Flash Advertising and Marketing Agencies

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944

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RFA NO. 185 OF 2018

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AGAINST THE DECREE AND JUDGMENT DATED 05.03.2016 IN OS 562/2011 OF
I ADDITIONAL SUB COURT,ERNAKULAM

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APPELLANT/DEFENDANT:

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THE THRISSUR CO-OPERATIVE BANK,
HEAD OFFICE SAHAKARANA SADABDI MANDIRAM,
THRISSUR, REPRESENTED BY ITS GENERAL MANAGER.

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BY ADV SRI.P.C.SASIDHARAN, SC, THRISSUR DISTRICT
CO-OPERATIVE BANK

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RESPONDENT/PLAINTIFF:

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M/S. FLASH ADVERTISING AND MARKETING AGENCIES,
41/1703, PIYOLI ROAD, KACHERIPPADY,
ERNAKULAM, PIN-682018, REPRESENTED BY ITS PROPRIETOR
MR. K. ALI, AGED 53 YEARS, S/O. LATE ABDUL KHADER HAJI,
RESIDING AT 38/625, SANGAMAM BYE LANE-3,
PADIVATTOM, EDAPPALLY SOUTH VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT-682024.

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BY ADV SRI.VARGHESE C.KURIAKOSE

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA NO. 185 OF 2018

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JUDGMENT

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The impugned judgment and decree were brought
under challenge by the defendant mainly on the reason
that the judgment rendered by the trial court is not a
speaking order and that no opportunity was granted to
the defendant to bring up their contentions by way of
written statement. The formal objection to the
jurisdiction of the court in entertaining a suit of
this nature alone was submitted and thereafter, no
opportunity was granted for the submission of a
written statement. Further, it is contended by the
learned counsel for the defendant that the trial court
has marked Exts.A1 to A33 documents based on the proof
affidavit of the plaintiff, PW1, without affording an
opportunity for cross examination. The statement made
by the trial court that the plaintiff’s claim is not
disputed by the defendant is erroneous.

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2. Before going into the merits and demerits of
the appeal, I am of the view that it is worthful to

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RFA NO. 185 OF 2018

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extract the entire body of the judgment herein below
with the relief granted:-

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“Suit for money.

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2. Plaint contains following averments:-
Towards the supply of executive diary and
others money was due to plaintiff from
defendant bank. Notice was issued demanding
the money. Bank paid the money. But balance
is due from defendant. The cause of action
arose on 28.4.2011 when last such demand was
made. Therefore, the plaintiff is entitled to
get Rs.3,41,114/- with future interest at the
rate of 12% per annum. Hence the suit.

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3. Plaintiff filed proof affidavit and Exts.A1
to A33 were marked. Learned counsel for
defendant did not cross examine PW1. In fact
plaint claim is not disputed by defendant in
the written statement. In the circumstance, I
find that plain claim stands proved by proof
affidavit and exhibits and I am satisfied that
plaint claim can be allowed. I also find that
plaintiff is entitled for a decree as prayed
for.

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In the result, suit is decreed as follows:
1.Plaintiffisallowedtorealise
Rs.3,41,114/- (Rupees three lakhs and forty one
thousand one hundred and fourteen only) with 6%
interest per annum on the principal sum of
Rs.3,12,064/- from the date of suit till date
of recovery.

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2. Plaintiff is also allowed to realise costs
of suit from defendant and its assets.”

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3. It is not made mentioned anywhere in the
judgment what is the evidentiary value of Ext.A1 to
A33. The nature of the document, whether it is primary
evidence or secondary evidence, and whether it is
admissible under any of the provisions of the Indian

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RFA NO. 185 OF 2018

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Evidence Act were also not discussed anywhere in the
judgment. Even the facts of the case are not extracted
or narrated anywhere in the judgment. The case
advanced by the plaintiff or the defendant was not
even mentioned. This kind of easy method of disposal
of the suit without touching into the merits and
demerits of the case cannot be sustained. No one can
be permitted to adopt this kind of method in the
disposal of suit, that too without, a speaking order
and without narrating the facts and circumstance of
the case and the evidence, if any, adduced and its
evidentiary value. No issues for adjudication was
also raised or incorporated in the judgment. It is
really not expected from a Sub Judge. Hence, the
decree and judgment of the trial court cannot be
sustained for the abovesaid reasons. As such, the

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decree and judgment of the trial court will stand set
aside and the matter is remanded back to the trial
court for the said purpose. The trial court shall
expedite the disposal of the suit at the earliest as

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RFA NO. 185 OF 2018

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far as possible, for which the parties shall appear
before the trial court on 23/05/2023. It is also
brought to the notice of this court that the appellant
now stood amalgamated with the Kerala State
Co-operative Bank and the Kerala State Co-operative
Bank is not made as a party or substituted in the
place of original appellant. Hence, the parties are
at liberty to take up the issue before the trial court
so as to get the impleadment of the Kerala State Co-
operative Bank or substitution, as the case may be.
Steps shall be taken by the appellant before the trial
court to get it recorded or substituted.

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The appeal will stand allowed in part accordingly.
No order as to costs.

Sd/-

P.SOMARAJAN

JUDGE

msp

The Thrissur Co-Operative Bank v. M/S. Flash Advertising and Marketing Agencies

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The Thrissur Co-Operative Bank v. M/S. Flash Advertising and Marketing Agencies

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