Kerala High Court
Royce Mathew vs The Plantation Corporation Of Kerala ... on 24 September, 1999
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939
AS.No. 645 of 2000 ( )
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AGAINST THE JUDGMENT IN OS.406/1994 of ADDL.SUB COURT,KOTTAYAM DATED
24.09.1999
APPELLANT/PLAINTIFF:
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ROYCE MATHEW, S/O MATHEW,
RESIDING AT PULLOLICKAL HOUSE,
KOTHALA P.O, KOTTAYAM.
BY ADVS.SRI.SAIGI JACOB PALATTY
SRI.JOHN JOSEPH VETTIKAD
SRI.SABU GEORGE
RESPONDENT/DEFENDANTS:
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THE PLANTATION CORPORATION OF KERALA LTD.,
KOTTAYAM, REPRESENTED BY THE
MANAGING DIRECTOR.
BY ADV. SRI.RAJESH N., SC, PLANTATION CORPORATION OF KERALA LTD.
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25-05-2017,
THE COURT ON 31.05.2017 DELIVERED THE FOLLOWING:
V.Chitambaresh & Sathish Ninan, JJ.
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A.S No.645 of 2000
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Dated this the 31st day of May, 2017
JUDGMENT
Sathish Ninan, J
1. The unsuccessful plaintiff in a suit for recovery of money is the appellant.
2. As per Ext.A3 notice, the defendant invited tenders for cutting and removing approximately 4870 rubber trees standing in Block No.1 Division E of Kallala Estate. The plaintiff's tender for `18 Lakhs was accepted and Ext.B1 agreement was executed. An amount of `1,80,000/- was deposited by the plaintiff as security. A further amount of `3,60,000/- was paid towards part of the sale consideration. The balance purchase price of `14,40,000/- was to be paid by the plaintiff in 7 instalments on the respective dates shown in Ext.B1 agreement. Undisputedly the plaintiff deposited the instalments including the 6th instalment A.S No.645/2000 2 and defaulted in payment of the 7th instalment. According to the plaintiff, after depositing the 6th instalment when he verified the total number of rubber trees it was found that there is a deficit of 1000 trees. Therefore, he is not bound to pay the 7th instalment. Therefore, the suit is filed for realisation of the security amount retained by the defendant and also the cost for the deficit in the number of trees for which he has already paid.
3. The defendant contended that Ext.B1 agreement stipulates the respective dates of payment of each instalment and the number of trees which the plaintiff can cut and remove on payment of each instalment. As per Ext.B1, on payment of the 7th instalment the number of trees that are to be cut and removed are 731 whereas even before payment of 7th instalment it was found that the number of trees remaining was only 450. According to the defendant, the plaintiff had cut and removed trees in excess of what he was entitled to. A.S No.645/2000 3 Accordingly, the Manager of the estate stopped the plaintiff from cutting and removing rubber trees. It was contended that the plaintiff has removed trees in excess of what he has paid for and that he has not suffered any damages.
4. The court below after appreciating the evidence found that the contention of the plaintiff that there is deficit in the total number of trees, is not correct. The suit was accordingly dismissed. It is challenging the said decree and judgment that the appeal is filed.
5. Heard the learned counsel for the appellant and the respondent.
6. The contention of the plaintiff in short is that though the tender was for cutting and removing 4870 rubber trees, only 3800 rubber trees were available at the site. Thus there is a deficit in the number of trees, and therefore, he is not liable to pay the entire amount as provided for in Ext.B1 agreement. According to him he has paid in excess of the price A.S No.645/2000 4 payable for the trees that he could infact cut and remove.
7. It is to be noticed that till the payment of the 7th instalment the plaintiff was cutting and removing trees. The plaintiff did not have any objection regarding the number of trees available. On 19.04.1994 the offices of the defendant made a local inspection and found that the plaintiff had cut and removed trees in excess of what he is entitled to on payment of the 6th instalment, and they stopped the defendant from further cutting and removing trees. It was only thereafter that the plaintiff has for the first time raised a contention that there is deficit in the total number of trees available.
8. As per Ext.B2 tender notification, any tenderer was entitled to visit the property and ascertain the number of trees, extent, boundaries etc. and if there is any dispute, they could resolve the same with the Manager of the estate. Such a right was available to A.S No.645/2000 5 any tenderer including the plaintiff. Therefore it was always open for the plaintiff to ascertain and be convinced about the number of trees before submitting his tender. According to him, he could not avail the said oppurtunity since there was growth of wild thorny vegetation in the estate. If he had such a grievance, it was always open for him to bring it to the notice of the defendant. Pertinently, this contention is raised only after he was stopped from removing any further trees since the defendants found that without remitting the 7th instalment he had cut and removed trees in excess of what he was entitled to. Without having availed the opportunity to be convinced about the number of trees before submitting the tender, at this point of time, it is not open for the plaintiff to raise a dispute regarding the number of trees.
9. The Manager of the defendant's estate was examined as DW1. The first grade Field Assistant of the E Division during the relevant period was examined as DW2. The A.S No.645/2000 6 Senior Field Assistant of the Estate during the period was examined as DW3. From their evidence it is brought out that before conducting the auction the trees were counted and numbers were painted on them. The area was demarcated into blocks having approximately 5000 trees in each block. The boundaries of each block were fixed. The trees for auction were indicated with a double ring mark on the trees in addition to the painting of numbers thereon. The numbering of the trees were counter checked by the Manager. DW2 and DW3 would depose that the plaintiff had visited the estate and counted the number of trees. The plaintiff as PW1 would admit that he had visited the estate before submitting the tender, but according to him, because of the thorny vegetation in the estate he could not count the number of trees. It is in evidence that the trees in the area in question were given for slaughter tapping for a period of two years immediately preceding the present tender. The person who had A.S No.645/2000 7 entered into the agreement for slaughter tapping had entered into Ext.B7 agreement with the defendant. Ext.B7 reveals that the agreement was with regard to the rubber trees standing in Block No. 1 Division E of Kallala Estate, which is the property in question. In Ext.B7, the number of trees is mentioned as 5006. Therefore, it is evident that the said block contained approximately 5000 trees. It is to be noticed that when the plaintiff was in the process of cutting and removing trees without payment of the last instalment, the defendant had lodged a complaint before the police. The police prepared Ext.B3 Mahazar on 22.04.1994 wherein it is stated that 4770 stumps of trees and approximately 100 trees are in the property. Exts.B18 and B19 census records prepared by the officers of the defendant also supports the defendant's case regarding the number of trees. The records would indicate that the number of trees were counted by five employees of the defendant and it was A.S No.645/2000 8 counter checked and signed by the Manager, which was again further random checked by another Manager. DW2 narrated the process involved in counting the number of trees.
10. The plaintiff mainly harps upon Ext.C1 Commissioner's report in the suit. According to the plaintiff, the report of the Commissioner would show that there was deficit in the number of trees. However, it appears that the Commissioner has not correctly identified and located the property in question. According to the Commissioner, there was some boundary dispute regarding the boundary of Block Nos.1 and 2. None of the parties had such a case. Further, according to the Commissioner, Block No.2 is situated on the northern side of Block No.1. How ever Ext.B19(a) the plan of Kallala Estate shows that Block No.2 lies on the western side of Block No.1. The succesful tenderers for removal of trees from Block No. 2, 3, 4 and 5 of E Division had not raised any A.S No.645/2000 9 dispute regarding boundary. To sum up, it appears that the Commissioner didnot correctly identify and locate the property in question.
11. On the overwhelming evidence adduced from the part of the defendant, the plaintiff's contention regarding deficit in the number of trees stands disproved. The trial court has appreciated the entire evidence in the correct perspective. We do not find any reason to interfere with the findings of the court below. The appeal fails and is dismissed. No costs.
Sd/- V.Chitambaresh, Judge
Sd/- Sathish Ninan, Judge
vdv
//True Copy//
P.A to Judge