IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 384 of 1996()
1. M/S.STEEL INDUSTRIALS KERALA LTD.
... Petitioner
Vs
1. M/S.KANJI MORARJI OIL MILLS
... Respondent
For Petitioner :SRI.U.K.RAMAKRISHNAN (SR.)
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :03/09/2010
O R D E R
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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A.S.No.384 of 1996-A
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Dated this the 3rd day of September, 2010.
Judgment
Thottathil B.Radhakrishnan, J.
1.This appeal is by the defendant. Among other
activities, it is involved in breaking up old
ships and selling off the scrap.
2.On knowing about the availability of two tanks as
part of scrap, the plaintiff offered to purchase
them from the defendant. The tanks were provided
for inspection and sale in “as is where is
condition”. The plaintiff purchased those tanks
and transported the same for its purpose.
3.The plaintiff sued on the plea that it was
thereafter noted that cement and other materials
were embedded inside the tanks and therefore, the
AS384/96 -: 2 :-
tanks weighed beyond their real worth. On this
plea, the plaintiff sued for refund of
proportionate amounts out of the consideration
paid by the plaintiff to the defendant. They
also claimed certain amounts allegedly spent for
transit and also towards damages on account of
amounts spent, including for cleaning up the
tanks.
4.That the tanks were part of scrap is an admitted
situation. The appealing defendant, SILK, a
public sector company, was involved in breaking
up old ships and taking over and selling the
scrap. Materials were provided for sale on “as
is where is basis”. What is involved is sale of
goods. There is no material on record or even a
plea by the plaintiff that there was any offer
by SILK or representation to the defendant as
regards the quality of the goods. There is no
plea or evidence that the defendant represented
to the plaintiff that the tanks were of a
AS384/96 -: 3 :-
particular quality or that it is maintained in a
particular manner. Obviously, therefore, the
principle of caveat emptor applies. The
plaintiff had admittedly the opportunity to
inspect the goods and take it, if it wanted.
5.On the aforesaid facts and circumstances, the
plaintiff’s claim in its entirety was wholly
unfounded and the plaintiff ought to have been
non-suited. The court below, however, decreed
the suit allowing recovery of Rs.87,960/- with
its future interest. On the evidence on record,
in the light of what is stated above, we do not
find any ground to sustain the impugned decree.
6.We may take note of the fact that the defendant
had offered to return a particular amount to the
plaintiff which the plaintiff did not receive.
In the aforesaid premise, we allow this appeal
and dismiss the suit without prejudice to the
AS384/96 -: 4 :-
plaintiff collecting any amount that the
defendant voluntarily pays. However, there will
be no order a to costs.
Thottathil B.Radhakrishnan,
Judge.
P.Bhavadasan,
Judge.
Sou-Sha/0710
AS384/96 -: 5 :-
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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A.S.5384 of 1996-A
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Judgment
3rd September, 2010.