Kerala High Court
V.K.Kunjumohammed vs Dalmia Cement on 29 September, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:72370
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 29TH DAY OF SEPTEMBER 2025 / 7TH ASWINA, 1947
RFA NO. 673 OF 2010
AGAINST THE JUDGMENT DATED 21.12.2009 IN OS NO.152 OF 2006
OF SUB COURT, MANJERI
APPELLANTS/DEFENDANTS 3 AND 4:
1 V.K.KUNJUMOHAMMED
S/O.ABDUL RAHAMAN HAJI, PARTNER,, M/S.J.K.R.
ASSOCIATES, RESIDING AT VALAKKUNDIL, IRUMPUZHI,
ERNADU TALUK, MANJERI, MALAPPURAM, PIN 676 121.
2 T.P.ABDUL RAHMAN
S/O. T.P.MOHAMMED, PARTNER,, M/S.J.K.R.
ASSOCIATES,RESIDING AT THEKKUMPURAM, HOUSE,
AINDOOR, EDAVANA PO, ERNADU TALUK,, MALAPPURAM PIN
676 121.
BY ADV SRI.K.C.KIRAN
RESPONDENTS/PLAINTIFF AND D1 AND D2:
1 DALMIA CEMENT
HAVING THEIR REGD. OFFICE AT DALMIAPURAM,
THIRUCHIRAPALLY DISTRICT AND HAVING A BRANCH, AT
CHIRAMEL CHAMBERS, KURISUPALLY ROAD,
COCHIN 682 015.
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R.F.A. No.673 of 2010
-: 2 :-
2 MS. J.K.R. ASSOCIATES
AP-X-316, V.P.M COMPLEX, ANGADIPURAM PO,
MALAPPURAM DISTRICT, KERALA PIN 679 321
3 SRI.T.K.ABDUL JAMAL
S/O T.K.MOIDU, MANAGING PARTNER, M/S. J.K.R.
ASSOCIATES ,RESIDING AT, THADATHIKANDI HOUSE,
PUTHANANGADI PO,, PERINTHALMANNA TALUK,
MALAPPURAM KERALA, PIN 679 321.
BY ADVS.
SRI.MITHUN BABY JOHN
SHRI.N.U.HARIKRISHNA
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
29.09.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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R.F.A. No.673 of 2010
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Dated this the 29th day of September, 2025
JUDGMENT
Sathish Ninan, J.
Challenging the decree in a suit for money, defendants 3 and
4 are in appeal.
2. The plaint claim is for the value of goods allegedly
supplied to the 1st defendant during the period from April, 2003
to March, 2005 with interest thereon. Defendants 2 to 4 are
impleaded as the partners of the 1 st defendant firm.
3. Except defendants 3 and 4, other defendants remained
ex parte. Apart from challenging the plaint claim, they contended
that they had retired from the firm on 21.04.2003 and that they
have no liability, if at all any, of the 1 st defendant firm. It
was also contended that the retirement of defendants 3 and 4 and
induction of new partners were duly intimated to the plaintiff.
It was also contended that the 2 nd defendant became the Managing
Partner only after such reconstitution.
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4. The trial court held that the claim remained proved
under Ext.A1 statement of accounts. It was also held that there
is no material to find that the plaintiff was intimated of the
retirement of defendants 3 and 4, and that there was no public
notice with regard to the retirement. Accordingly, all the
defendants were held liable for the plaint claim.
5. We have heard Shri.T. Krishnanunni, the learned Senior
Counsel assisted by Smt.A. Meena, the learned counsel, on behalf
of the appellant and Shri.Mithun Baby John, the learned counsel
on behalf of the 3rd respondent. In spite of the service of notice
on the 1st respondent, there is no appearance.
6. The points that arise for determination are;
(i) Has the plaintiff proved the plaint claim?
(ii) Are defendants 3 and 4 liable for the plaint claim?
7. To prove the plaint claim, the plaintiff relied on
Ext.A1 statement of accounts and Ext.A5 ledger extract. The
admissibility of the documents was objected on the ground that
they are only computer printouts without any certification.
However, the objection was overlooked by the court holding that
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Ext.A1 is certified as the true extract. A perusal of Ext.A1 and
Ext.A5 shows that it do not contain the certificate as mandated
under Section 65B of the Indian Evidence Act. With regard to the
computer printouts, the certificate in terms of Section 65B is
mandatory. As was noticed, its admissibility was duly objected to
at the time of evidence. We find that, for lack of compliance
under Section 65B of the Indian Evidence Act, Exts.A1 and A5
cannot be looked into.
8. Apart from Exts.A1 and A5, the only other evidence to
prove the plaint claim is that of PW1. He is the senior Accounts
Officer of the plaintiff's company. Admittedly, he joined the
company only in the year 2008 and he has no direct knowledge with
regard to the transactions. He also admitted that the security
deposit made by the 1 st defendant is not deducted from the plaint
claim. Suffice to notice that the oral evidence of PW1 is not
helpful in proving the plaint claim.
9. Thus, there is total lack of evidence to prove the
plaint claim. The trial court has relied solely on Exts.A1 and A5
to uphold the plaint claim. We have already held the said
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documents to be inadmissible in evidence. In the absence of any
evidence to prove the plaint claim, the suit is liable to be
dismissed. Point No.(i) is answered accordingly. On the finding
on point No.(i), point No.(ii) does not arise for consideration.
Resultantly, the appeal is allowed. The decree and judgment
of the trial court is set aside and the suit is dismissed. No
costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
