JOSEPH EMMANUEL Vs. JOHN VARGHESE

JUDGEMENT

(1.) THIS is an appeal filed by the second defendant in O.S.138/1994 of the Sub Court, Pala challenging the judgment and decree dated 1.1.1996 in the said suit. The plaintiff is the first respondent and the second defendant is the second respondent in the appeal. The plaitiff had filed the suit for the realisation of an amount of Rs.47,500/- out of which, a decree for Rs.17,500/- was sought against the first defendant, while a decree for Rs.30,000/- was sought against defendants 1 and 2. The suit was filed in the following facts and circumstances:-

(2.) ACCORDING to the plaintiff, the first defendant had purchased timber from him and had issued two cheques for Rs.35,000/- and Rs.34,250/- both dated 26.11.1988 drawn on the Cherthala branch of the Vijaya Bank, towards the price of timber so purchased. When the cheques were presented for encashment by the plaintiff from the Federal Bank Ltd., Cherthala, they were returned dishonoured for insufficiency of funds in the account. The first defendant was immediately informed of the dishonour of the cheque by issuing a registered notice on 31.1.1989, which was accepted by him on 3.2.1989. But he did not pay the amount due. Subsequently, the first defendant paid an amount of Rs.21,500/- and thus the balance amount outstanding is Rs.47,500/-.

(3.) SUBSEQUENTLY , the major portion of the timber was removed by the defendants. The suit was filed when the plaintiff learnt that the defendants were making preparations to remove even the balance timber remaining in the property of Scariah, Thakadipuram House, Kumali without paying the amount due to the plaintiff. Therefore, he filed the suit for recovery of the amount due to him and also sought for an order of prohibitory injunction restraining defendants 1 and 2 from removing the logs of timber that they had stocked in Scariah's property comprised in survey No: 222 of Kumali village to any other place.