IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 206 of 2003()
1. METHANATH TEA ESTATE
... Petitioner
Vs
1. BABU
... Respondent
For Petitioner :SRI.RAJU K.MATHEWS
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :05/01/2010
O R D E R
A.K.BASHEER & M.L.JOSEPH FRANCIS, JJ.
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A.S.No.206 OF 2003
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Dated this the 5th day of January 2010
JUDGMENT
Basheer, J.
Appellant is the defendant in a suit for recovery of money. The suit was
instituted by respondent No.1/plaintiff for realisation of a sum of
Rs.1,40,465/- with 18% interest from the date of suit till the date of
realisation.
2. The averments in the plaint may be briefly noticed:
3. The plaintiff who is a dealer in Tea making Machinary was
approached by the defendant agreeing to purchase a “4′ E.C.P. Chamber
Drier with Siracco No.8 furnace” in exchange of an old ‘Down Draft Drier’ and
2 Savage Cutters belonging to the latter. The cost of the E.C.P. Chamber
with furnace and spares was fixed at Rs.1,65,000/-. Value of defendant’s
Down Draft Drier was fixed at Rs.55,000/- and the two savage cutters were
valued at Rs.10,000/-. Defendants paid a sum of Rs.25,000/- as advance on
October 3, 1997. A further sum of Rs.25,000/- was again paid by the
defendants to the plaintiff on October 7, 1997. The understanding was that
the plaintiff would dismantle the 4′ E.C.P. drier with spares available at
Kottamalai Tea factory and load them at his expense for transportation to the
Tea Estate of the defendants who agreed to bear the transportation and
unloading charges. According to the plaintiff, the Drier with the spares, were
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dismantled and loaded into a vehicle as agreed by him. The defendants
transported the same to their factory and unloaded them. Two savage cutters
were also delivered. But payment was not made. It was in the above
circumstances that the plaintiff claimed a total sum of Rs.1,40,465/- towards the
balance amount due from the defendants being the value of the drier, general
damages of Rs.5,000/-, interest, etc.
4. In the written statement filed by the defendants, it was primarily
contended that the plaintiff had committed breach of the contract in as much as
he had failed to get the drier erected at the premises of the Estate as agreed by
him. He had also failed to supply the spares, namely 5 numbers of tube lights,
40 numbers of Siracco tubes and 45 numbers of arches which he had agreed to
deliver along with the drier. The defendants further contended that they were
prepared to pay the balance sum of Rs.50,000/- and to deliver the old Drier as
agreed by them provided the plaintiffs erected the drier at their premises as
agreed by him.
5. The court below framed the following issues:
1) Whether there was any agreement to instal the plaint mentioned
drier in the factory of the first defendant by the plaintiff as stated by
the defendants.
2) Whether the plaintiff has performed his part of the contract?
3) Whether the plaintiff is entitled to get the amount claimed in the
plaint?
4) Whether the defendants are entitled to get any amount claimed
in the counter claim?
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6. The plaintiff got himself examined as PW1. Exts.A1 to A20 were
marked on his side. DW1 and DW2 were examined on the side of the
defendants, though no documents were produced.
7. The court below, after a careful evaluation of the oral and documentary
evidence on record, found that the plaintiff had performed his part of the
contract as undertaken by him in as much as he had delivered the 4′ ECP drier
and spares to the defendants. The court below further held that the defendants
had failed to deliver the old drier as undertaken by them and failed to pay the
balance sum of Rs.50,000/- to the plaintiff. It was noticed by the court below
that the value of the old drier which defendants agreed to deliver to the
plaintiffs was fixed at Rs.55,000/- and the balance payable by the defendants
after adjusting the advance paid by them was Rs.50,000/-. Thus, the court
below found that the total sum of Rs.1,05,000/- was liable to be paid by the
defendants to the plaintiffs. Accordingly, the court below granted a decree for a
sum of Rs.1,05,000/- with interest at the rate of 6% p.a. from the date of suit till
the date of realisation with costs. The above decree and judgment are under
challenge in this appeal.
8. We have heard learned counsel for the appellant and the respondents
and perused the materials available on record.
9. It is not in dispute that the appellants/defendants had agreed to
purchase through the plaintiffs the 4′ E.C.P. Chamber Drier with Siracco No.8
furnace with spares which were available at Kottamali estate. The value of the
above machinery was fixed at Rs.1,65,000/-. The understanding was that the
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above machinery will be dismantled and loaded in a vehicle at the expense of
the plaintiff. The defendants agreed to meet the transportation and unloading
charge.
10. However, it was contended by the defendants that the plaintiff was
bound to erect the ECP chamber and furnace at their factory premises at their
expense. The court below noticed that Ext.A1 did not contain such a clause or
stipulation. In Ext.A1, the value of the ECP chamber and furnace was indicated
as Rs.1,65,000/-. Similarly, the value of the old Down Draft Drier which was
available with the defendant and which was to be given in exchange of the
furnace was valued at Rs.55,000/-. The two Savage Cutters were also valued at
Rs.10,000/-. As rightly noticed by the court below Ext.A1 did not contain any
stipulation that mandated or obligated the plaintiff to erect the furnace at
defendant’s estate premises.
11. Ext.A2 is a receipt issued by the plaintiff on October 3, 1997 when he
received a sum of Rs.25,000/- as advance from the defendants towards the value
of the ECP chamber and furnace. Ext.A2 contains further undertaking by the
plaintiff to dismantle and load the Chamber at his cost in the vehicle. It is
further stipulated that transportation and unloading charges would be met by
the defendants. Thus, it is evident from Exts.A1 and A2 that the plaintiff never
agreed to meet the erection cost as alleged by the defendants.
12. It is true that in Ext.A8 the plaintiff had indicated that he would make
available services of a mechanic for erection of the ECP chamber. What had
been stated by plaintiff in Ext.A8 is only that he would send his mechanic to the
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Estate of the defendant as soon as he completes his other assignments
elsewhere. Nothing more nothing less.
13. As mentioned earlier, in the the written statement itself the
defendants had conceded that they were prepared to pay the balance sum of
Rs.50,000/- towards the value of the ECP Chamber and also to deliver the old
Drier as agreed by them on condition that the plaintiff met the erection cost. But
the records and the evidence of the parties will clearly reveal that the plaintiff
had never agreed or undertaken to erect the ECP chamber and furnace at his
cost.
14. In that view of the matter, the court below, in our view, was justified
in directing the defendants to pay the balance towards the value of the ECP
Chamber and Furnace and also the value of the old Drier which the defendants
had undertaken to deliver to the plaintiff in exchange of the ECP Furnace. We
do not find any illegality in the view taken by the learned Judge. No
interference is warranted with the decree and judgment passed by the court
below. The appeal is devoid of merit.
Therefore, the appeal is dismissed. In the peculiar facts and
circumstances, there will be no order as to cost.
A.K.BASHEER, JUDGE
M.L.JOSEPH FRANCIS, JUDGE
jes
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A.K.BASHEER & M.L.JOSEPH FRANCIS, JJ.
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A.S.No.206 OF 2003
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JUDGMENT
Dated 5th January 2010