Devikulam Taluk General Marketing Society Ltd v. Biju Kurian

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sathish Ninan, J.
Judgment Date: 2021-09-27
Court Decision / Holding: The writ petition is allowed in part. Ext.P5 award of the Tribunal in Appeal No.75/2013 will stand modified to the extent of re-fixng the rate of interest at 6% per annum. But for the above, the award will stand affirmed. Parties to bear their respective costs.
Final Disposition: Writ petition allowed in part

Parties to the Case

Appellants / Petitioners

Devikulam Taluk General Marketing Society Ltd., represented by its Secretary

Respondents

Biju Kurian

Legal Representation & Advocates

Counsels for Petitioners

• Sri Latheesh Sebastian

Counsels for Respondents

• Sri George Mathew
• Sri K. S. Hariharaputhran

Case Synopsis & Summary

This writ petition challenges a Kerala Co-operative Tribunal award in a money-recovery dispute arising from an unpaid sale of dried black pepper. The plaintiff-seller alleges that on 18.08.2009 it delivered 2,208.300 kilograms of pepper to the defendant at its Vellathooval Depot, for which the price remained unpaid. A weighment receipt (Ext. A1) was issued by the depot manager, O.A. Baby, but the manager disappeared; the claim is contractual in nature as a sale of goods, i.e., an unpaid-seller suit, not a tort. An Arbitrator dismissed the claim on grounds of lack of proof of a sale; on appeal, the Kerala Co-operative Tribunal (Appeal No. 75/2013) reversed and awarded in favor of the plaintiff. The petitioner contends that the suit is defective for non-joinder of a necessary party — O.A. Baby — a contention based on a judgment cited by the petitioner. The Tribunal, however, held that Baby is not a necessary party and at best a proper party. The court reviews the merits, noting Ext. A1’s lack of signature, the documentary ledger and stock records adduced by the defendant, and oral evidence from PW1, PW2 and PW3. It affirms the Tribunal’s findings and reduces the rate of interest from 12% to 6% per annum, while otherwise upholding the award and restoring costs to parties.

Provisions of Law Cited

Constitution of India, Article 226

Legal Doctrines & Maxims

Non-joinder of parties is to be urged at the earliest possible opportunity.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that the plaint claim is vitiated by non-joinder of a necessary party, namely O.A. Baby, the depot manager who allegedly supplied the pepper and who failed to pay. Relying on Thankammu C. v. Head Master, High School, Anthikkad and Ors. (2020 (3) KLT 705), it was urged that the tortfeasor is a necessary party; non-joinder should have been raised at the earliest opportunity. The suit, being one for value of goods supplied (an unpaid-seller claim), does not lie on tort, and Baby could only be a proper party, not a necessary one. Ext.A1’s lack of signature and the absence of corroborating documents were argued to undermine proof of a sale.

Contentions of Respondents

The respondents contested that the transaction involved a sale of goods and that the weighment slip, though unsigned, is supported by oral and documentary evidence and the depot records. The Tribunal’s reversal of the arbitrator’s finding was urged as consistent with the probabilities of the evidence, and there is no demonstration that the Tribunal’s factual conclusions are perverse; the appeal seeks to sustain the award and the plaintiff’s claim for the price of pepper.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Thankammu C. v. Head Master, High School, Anthikkad and Ors.	2020 (3) KLT 705	Mentioned Only	Cited by the petitioner's counsel to argue non-joinder; however, the court distinguishes because the present suit is a contract claim (unpaid seller) rather than a tort matter.

Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** ## **WP(C) NO. 24084 OF 2014** ## **AGAINST THE JUDGMENT IN APPEAL NO.75/2013 OF KERALA CO-OP.TRIBUNAL,** ## **THIRUVANANTHAPURAM** ## **-----** ## **PETITIONER:** DEVIKULAM TALUK GENERAL MARKETING SOCIETY LTD NO.I-156, ADIMALI P.O., ADIMALI VILLAGE,, DEVIKULAM TALUK, IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV SRI.LATHEESH SEBASTIAN ## **RESPONDENT:** BIJU KURIAN AGED 40 YEARS S/O.KURIEN, PAZHAMKUZHIMALAYIL, VELLATHOOVAL P.O., VELLATHOOVAL VILLAGE, KUTHUPARA KARA, IDUKKI DISTRICT. BY ADVS. SRI.GEORGE MATHEW SRI.K.S.HARIHARAPUTHRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W. P. (C) No.24084 of 2014** **= = = = = = = = = = = = = = = = = = Dated this the 27[th] day of September, 2021** ## **J U D G M E N T** The defendant in an ARC for recovery of money is the petitioner. The claim was for value of dried black pepper supplied by the plaintiff to the defendant at its Vellathooval Collection Depot. 2. According to the plaintiff, on 18.08.2009, dried black pepper amounting to 2208.300 kilograms was sold by him to the defendant at its Vellathuval Depot. At the time of delivery of the goods, a weighment receipt (തൂകക ചചീടക ) was issued by the depot manager one Mr.O.A. Baby to the plaintiff. The amount was to be paid a few days later viz. on 24.08.2009. However, thereafter the said manager was not found in the depot. The price of the goods supplied remains unpaid. It is accordingly that the suit is filed for realisation of the price of the goods. **W. P. (C) No.24084 of 2014** -: 2 :- 3. The defendant filed a written statement denying the plaint claim. The arbitrator as per Ext.P3 award dismissed the claim. On appeal by the plaintiff before the Tribunal as Appeal No.75/2013, the Tribunal set aside the award passed by the Arbitrator and passed an award in favour of the plaintiff. It is challenging the same, the writ petition has been filed. 4. Heard Sri.Latheesh Sebastian, learned counsel for the petitioner-defendant and Sri.George Mathew, learned counsel for the respondent-plaintiff. 5. To reject the plaint claim, the arbitrator relied upon the following facts:- - (1) The weighment receipt (Ext.A1) does not contain - any signature or seal. - (2) The alleged sale could not be proved by any. (3) The documents produced by the defendant, including the ledger, stock register, bill book etc. does not reveal any transaction with the plaintiff. **W. P. (C) No.24084 of 2014** -: 3 :- 6. Accordingly the arbitrator concluded that the plaintiff was unable to prove the transaction pleaded by him. The Tribunal, on the other hand, disagreed with the findings of the arbitrator and found the transaction as probable and passed an award in favour of the plaintiff. 7. Sri.Latheesh Sebastian, the learned counsel for the petitioner-defendant raised a preliminary contention that the suit is bad for non-joinder of necessary parties. According to him, Sri.O.A.Baby who is claimed to have been the depot manager of the defendant and to whom the black pepper is claimed to have been supplied and who failed to pay the amounts, is a necessary party to the proceeding. The learned counsel relied on the judgment of this Court in _**Thankammu C. v. Head Master, High School, Anthikkad and Ors. [2020 (3) KLT 705]**_ to contend that the defendant being sought to be made liable for the alleged tortious act of O.A.Baby, the said tortfeaser is a necessary party. It is to be borne in mind that the **W. P. (C) No.24084 of 2014** -: 4 :- plaint claim is not one based on any tortious liability but, is on a contract - for value of the goods supplied It is a suit by an unpaid seller. The alleged sale is to the defendant at its Vellathuval depot. The purchaser is the defendant society and not O.A.Baby. The said O.A.Baby having been in-charge as the Depot Manager, it could at best be contended that he is a proper party to the proceeding. It is pertinent to note that, before the Arbitrator, no plea of non-joinder of necessary parties was urged. The said contention was for the first time raised before the Tribunal. The Tribunal negatived the contention. Law is well settled that a plea of nonjoinder of parties is to be urged at the earliest possible opportunity. Of course if it is a necessary party it would be an exemption. However, as noticed, O.A.Baby is not a necessary party and at best could only be a proper party. Therefore, the contention of nonjoinder, fails. **W. P. (C) No.24084 of 2014** -: 5 :- 8. Coming to the merits of the plaint claim, the only question for determination is whether the quantity of black pepper as claimed by the plaintiff was supplied. The only documentary evidence which the plaintiff could produce was Ext.A1 - weighment slip (തൂകക ചചീടക ). While it is true that Ext.A1 does not contain any signature or seal, the claim of the plaintiff that the same was written by O.A.Baby is not denied by the defendant, though not specifically admitted. That O.A.Baby was in charge of the Depot at the relevant time is not disputed. If Ext.A1 was not in the handwriting of O.A.Baby, the defendant could have proved the same on the basis of documents written by Baby. This is of relevance since, the documents are with the defendants and there is no specific denial of the handwriting of O.A.Baby in Ext.A1. **W. P. (C) No.24084 of 2014** -: 6 :- 9. The oral evidence on behalf of the plaintiff includes the evidence of the plaintiff as PW1, the evidence of a headload worker as PW2 and the evidence of the Sub Inspector of Police, Vellathuval as PW3. PW1 has spoken to in terms of the plaint. PW2, the headload worker deposed that it was he who unloaded the material and that he relied on Ext.A1 paper slip written by the Manager for the purpose of calculating his labour charge. He has also deposed that receipt of labour charge from his union has been entered in the relevant book. PW3 deposed that he was the investigating officer into the crime registered against Baby and that he was convinced about the genuineness of the claim. The Tribunal took note of the fact that the plaintiff is a petty dealer from a remote place and the mere fact that he committed a folly by accepting acknowledgment on a mere slip of paper, by itself, is not to be taken as a ground to discredit his claim. **W. P. (C) No.24084 of 2014** -: 7 :- 10. On appreciation of the entire evidence, both oral and documentary, and the circumstances involved, the Tribunal found the evidence of the plaintiff's witness is reliable and acceptable. It cannot be said that the finding of the Tribunal is perverse warranting interference in exercise of writ jurisdiction under Article 226 of the Constitution of India. The findings of the Tribunal are not liable to be interfered with. 11. As regards the grant of interest, the Tribunal has awarded 12% interest from the date of supply (18.08.2009) till realisation. Though the transaction is a commercial one, considering the prevalent rate of interest in commercial and banking transactions, I am of the opinion that the rate awarded is exorbitant and that 6% interest is just and reasonable. In the result, the writ petition is allowed in part. Ext.P5 award of the Tribunal in Appeal No.75/2013 will stand modified to the extent of re-fixing the rate **W. P. (C) No.24084 of 2014** -: 8 :- of interest at 6% per annum. But for the above, the award will stand affirmed. Parties to bear their respective costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 24084/2014** PETITIONER EXHIBITS EXT.P1.TRUE COPY OF THE CLAIM PETITION FILED BEFORE THE ARBITRATOR IN ARC NO.18/2011. EXT.P2.TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER TO EXT.P1 CLAIM. EXT.P3.TRUE COPY OF THE AWARD OF THE ARBITRATOR DATED 31/5/2013 IN ARC NO.18/2011. EXT.P4.TRUE COPY OF THE APPEAL MEMORANDUM IN APPEAL NO.75/2013. EXT.P5.TRUE COPY OF THE JUDGMENT OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 30/7/2014 IN APPEAL NO.75/2013. -----