Delhi District Court
Sh. Manoj Kumar vs Ms. Nitu on 10 June, 2022
THE COURT OF SHRI DEEPAK SHERAWAT: SENIOR CIVIL JUDGE
CUMRENT CONTROLLER, KARKARDOOMA COURTS (SHAHDARA).
Civ Suit 183/18
Sh. Manoj Kumar
S/o Sh. Dashrath
R/o H.No. C-61, Radha Vihar,
Saboli, Delhi-110093 ...........................Plaintiff
VS
Ms. Nitu
W/o Sh. Ram Vilas
R/o H.no. 8/A, Raj Gali,
Babarpur, Shahdara,
Delhi-110032 ...................Defendant
Date of Institution : 13.02.2018
Date of Reserving order : 06.06.2022
Date of Judgement : 10.06.2022.
SUIT FOR RECOVERY OF Rs. 2,95,000/- ALONGWITH INTEREST @18%
PER ANNUM
JUDGMENT
1. Plaintiff has filed the present suit for recovery of Rs. 2,95,000/- from the defendant. Briefly stated, it is the case of the plaintiff that he is registered owner of the vehicle no. DL-1ZA-4445 Tata Indigo car and he executed an agreement to sell of the said vehicle with the defendant on 02.08.2017 for a consideration of Rs. 1,40,000/-. As per the terms and conditions of the said agreement, the defendant was under obligation to pay the installments of the loan availed by the plaintiff from the bank for purchasing the vehicle. The vehicle was handed over to the defendant on 02.08.2017 but the defendant returned the same on 03.12.2017 in a damaged condition and despite requests failed to pay the installments and the damages.
2. In written statement, defendant has stated that plaintiff has fabricated the agreement dated 02.08.2017 after the defendant was made to sign blank sale letter. It is further stated that at the time of the agreement the vehicle was not in a good condition and the plaintiff after receiving the amount of Rs. 1,40,000/- gave assurance to the defendant that possession of the vehicle would be handed over within 2-3 days and the delivery of vehicle was never made to the defendant.
3. On the basis of the pleadings, following issues were framed:
I. Whether the plaintiff is entitled for recovery of Rs. 2,95,000/- as prayed for? OPP.
II. Whether the plaintiff is entitled for interest on the abovesaid sum? If yes, at what rate and for what period?OPP.
III. Relief.
4. In evidence, plaintiff examined himself as PW1 and he reiterated his case in his affidavit Ex. PW1/A. PW1 relied upon the documents:
I. Legal notice dated 13.12.2017, Ex. PW1/1, II. Postal receipt Ex. PW1/2, III. E-tracking report Ex. PW1/3, IV. Affidavit related to the vehicle in question Ex. PW1/4, V. Aadhaar card of deponent Ex. PW1/5, VI. Sale agreement Ex. PW1/6, VII. Copy of permit of vehicle Mark B, VIII. Copy of fitness of vehicle Mark C, IX. Copy of pollution of vehicle Mark D, X. Copy of insurance of vehicle Mark E, XI. Copy of RC of vehicle Mark F.
5. On behalf of defendant, two witnesses have been examined. DW1 Sh. Ram Vilas is father of defendant and he has testified by way of affidavit Ex. DW1/A wherein he has stated that on 02.08.2017 he had visited SDM Courts alongwith plaintiff to execute documents of the sale of vehicle. Defendant has examined herself as DW2 and she has deposed by way of affidavit Ex. DW2/1 and she has relied upon copy of Aadhaar card mark A and Passbook Ex. DW2/B.
6. I have heard arguments and perused the record.
7. My issue wise findings are as follows:
I. Whether the plaintiff is entitled for recovery of Rs. 2,95,000/- as prayed for? OPP.
II. Whether the plaintiff is entitled for interest on the abovesaid sum? If yes, at what rate and for what period?OPP.
8. Both issues are interconnected and therefore being considered together. Onus to prove these issues was on the plaintiff. The only relevant document which has been relied upon by the plaintiff in evidence is the sale agreement Ex. PW1/6 which shows that the said agreement was executed between plaintiff and defendant on 02.08.2017 for sale of vehicle in question for a sum of Rs. 1,40,000/-. No other document has been produced in evidence by the plaintiff to prove that property in the vehicle had passed to the defendant.
9. An agreement to sell is distinct from a sale of the goods. Section 4 of the Sale of Goods Act provides that where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale but where the transfer of the property in the goods is to take place at a future time or subject to some condition, the contract is called an agreement to sell. The object of an agreement to sell is to transfer the property in the goods at certain future time or until certain conditions are fulfiled and it is a contract of executory nature. In the present case, plaintiff has not produced any proof to show that the vehicle in question was in fact delivered to the defendant. No letter of possession has been brought in evidence. Plaintiff has also not produced any record from the concerned RTO to show that the vehicle was transferred in the name of defendant. No relevant forms have been proved.
10. In a sale, the buyer becomes the owner of the sold goods and the risk as a rule passes to the buyer without regarding the fact whether the goods are delivered to the buyer or not. However, in an agreement to sell, the property in the goods remains with the seller and consequently the risk also does not pass to the buyer. In the present case, delivery of vehicle has not been proved by the plaintiff and therefore it cannot be said that any risk in respect to the vehicle has passed to the defendant.
11. Plaintiff has not produced any evidence to prove that the vehicle got damaged on account of use by the defendant from 02.08.2017 to 03.12.2017. No report from any mechanic or workshop has been brought in evidence. Similarly, no expert opinion has been adduced in evidence to prove the nature and extent of damages suffered by the vehicle. Damages cannot be ascertained merely on the basis of the statement of the plaintiff. As such the plaintiff has failed to prove liability of the defendant to pay the claimed amount.
12. Issues no. 1 & 2 are decided against the plaintiff and in favour of the defendant.
13. In view of the foregoing discussion the plaintiff is not entitled to any relief. The suit is dismissed. No order as to costs. Decreesheet be drawn.
File be consigned to record room.
Typed to the dictation directly (Deepak Sherawat) corrected and pronounced in SCJ/RC (Shahdara) the open court on this 10h day Karkardooma Courts, of June, 2022. Delhi/10.06.2022.