Bangalore District Court
Sri.K.Rajendra vs The Manager on 28 October, 2019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII ADDL.CITY CIVIL & SESSIONS JUDGE
Dated this the 28th day of October, 2019.
O.S. No.25144/ 2013
Plaintiff: Sri.K.Rajendra,
S/o.Sri.K.Krishnappa, aged
about 58 yrs, and
R/at.No.42/A, 31st A Cross,
4th Main, Jayanagar,
Bengaluru.
(By Sri.A.T.Manohar - Adv.)
V/S
Defendants: 1. The Manager, M/s.Shub
Investments, No.20, Old No.18,
I Floor, General Muttaiah,
Modaliar Galli, Sahuharpet,
Chennai.
2. Sri.R.Ganesh Naidu @ Ganesh,
aged about 52 yrs, Central
India Auto Consultant,
No.24/1, 2nd Main, KP New
Extension, Bengaluru.
(Defts.Exparte)
2 O.S.No.25144/2013
Date of Institution of the suit 22.01.2013
Nature of the (Suit or pronote,
suit for declaration and
Declaration
possession, suit for injunction,
etc.)
Date of the commencement of
13.11.2018
recording of the Evidence.
Date on which the Judgment was
28.10.2019
pronounced.
Year/s Month/s Day/s
Total duration 06 09 06
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
(CCH74), Bengaluru.
JUDGMENT
The plaintiff has filed this suit for declaration, declaring that, defendants are not entitle to recover the possession of the schedule vehicles without due process of law and consequential relief that any amount due under hire purchase agreement dated 22062001, is barred by limitation.
2. Brief facts of the plaintiff's case:
It is contended in the plaint that plaintiff is engaged in the business of hiring the lorries and other vehicles owned by him on 3 O.S.No.25144/2013 rental basis. In furtherance of his business, the plaintiff entered into hire purchase transaction with defendant No.1, which was facilitated by defendant No.2 in respect of lorry bearing No.KA05 D24, which is schedule property. Further he contended that under the hire purchase transaction, the amount payable was Rs.3,50,000/ and on calculation of interest, the final amount payable was Rs.3,85,000/ and said amount was divided into 20 monthly installment of Rs.13,500/. The plaintiff has paid 20 monthly installment of Rs.13,500/ and 3 installments of Rs.11,500/ to the defendants. So, thus the plaintiff had paid sum of Rs.3,04,500/ as on May 2013. Since the defendants demanded over due interest from the plaintiff, the plaintiff was forced to pay an additional sum of Rs.1,50,000/ to the defendants on 27.04.2004, towards the hire purchase transaction. In spite of payment the defendants refused to give their consent to remove their name in the RC book of suit vehicle, hence, the plaintiff has filed O.S. No.4525/2004, before the City Civil Court, Bengaluru, for restraining the defendant from interfering with the possession of the vehicle. In the said suit defendants have filed Written 4 O.S.No.25144/2013 Statement admitting that they have received Rs.3,04,500/ from the plaintiff, however the defendants contended that plaintiff had not paid entire payment and he was due to additional sum of Rs.1,00,000/. And said suit was dismissed. The plaintiff has preferred an appeal before the Hon'ble High Court of Karnataka in RFA No.413/2010 and the Hon'ble High Court of Karnataka was pleased to dispose of the appeal holding that possession of the plaintiff over the suit vehicle is admitted and liberty was given to the plaintiff to proceed against the defendant if there any interference and further demand of any balance amount.
It is the case of plaintiff that the initial agreement period of hire purchase was 30 months from 22062001. In other words, the agreement ended as on 21122004. So, if the defendant had any claim against the plaintiff, it is barred by limitation, even if the cause of action runs from the date of judgment of the Hon'ble High Court, in RFA No.413/2010, disposed off on 20.07.2012, in that event also the claim of the defendant is barred by limitation. 5 O.S.No.25144/2013
3. This court has issued the suit summons to the defendants, through RPAD, returned with a endorsement unclaimed. Hence, defendants placed exparte.
4. In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.5. Ex.P.1 is the hire purchase agreement taken place between the plaintiff and defendants and Ex.P.2 are the 16 receipts for having paid installment amount, Ex.P.3 is the receipt for having received Rs.1,50,000/ by the defendants, Ex.P.4 is the certified copy of the plaint in O.S. No.4525/2004 and Ex.P.5 is the certified copy of the judgment in RFA No.413/2010.
5. I have perused the oral and documentary evidence led by the plaintiff and considered the material placed before the court, heard argument of the learned counsel for the plaintiff. On perusal of the same the points that would arise for my consideration are as follows:
1. Whether suit filed by the plaintiff is maintainable?
2. Whether plaintiff proves that he is entitled for negative declaration 6 O.S.No.25144/2013 declaring that defendants are not entitled for recovery of possession of the schedule vehicle without due process of law?
3. Whether plaintiff proves that the amount due under the hire purchase agreement dated 22.6.2001 is barred by limitation?
4. Whether plaintiff proves that he is entitled for the relief sought in the plaint?
5. What order or decree?
6. My answer to the above points are as follows: Point No.1: In the Negative, Point No.2: Not survived for consideration, Point No.3: Not survived for consideration, Point No.4: Not survived for consideration, Point No.5: As per final order, for the following: REASONS
7. POINT No.1: In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to Ex.P.5. It is the case of the plaintiff that he is doing business of hiring the lorries and 7 O.S.No.25144/2013 other vehicles, as part of his business the plaintiff has entered into an hire purchase agreement with defendant No.1, facilitated by defendant No.2, in respect of vehicles. In the hire purchase agreement there are other vehicles involved, but plaintiff claimed only in respect of vehicle shown at schedule. Further it is the case of the plaintiff that he has paid entire due amount to the defendants, after payment of said due amount, the plaintiff has filed O.S. No.4525/2004, against the present defendants for the relief of injunction, restraining the defendants from taking possession of the suit schedule vehicle. In the said suit the defendants appeared through their counsel and filed their written statement. The defendants have admitted in the written statement for having received sum of Rs.4,54,500/ as against Rs.3,85,000/. So, this admission clearly shows that plaintiff has paid entire amount. Further plaintiff contended that the defendants though admitted that they have received sum of Rs.4,54,500/, but still claimed further due to them and claimed for repossession of the vehicle. As against the said claim the plaintiff has filed O.S. No.5424/2004, same was dismissed and as 8 O.S.No.25144/2013 against the said judgment and decree plaintiff again preferred an appeal and appeal also disposed off. In the said RFA No.413/2010 it is observed by the lordship and reserved the right of defence of the present plaintiff to take defence in case the defendants have filed any proceedings for further balance amount or in case they claimed the possession of suit vehicle. The relevant portion of judgment of the Hon'ble High Court in RFA No.413/2010 reads thus:
10. In that view of the matter, though I see no reason to interfere with the judgment passed by the Court below, it is necessary to clarify that the plaintiff would have his defences open to be urged in appropriate proceedings in the event if the defendants choosing to proceed further with regard to either repossession of the vehicle or recovery of the amount which according to them is due.
8. Now it is relevant to extract the relief sought in O.S. No.4525/2004, filed by the present plaintiff against the present defendants, which reads thus:
9 O.S.No.25144/2013
15) ತತರರಗಗಗ ಪಗಪರರನನನ ಈ ಘನ ನಗನಯಗಲಯವವ ದಯಮಗಡ ವಗದಯ ಪರ ಈ ಕನಳಕಕಡಕತನ ತತಪವರ ಮತತತ ಡಕಪಯನತನ ನತಡಬನತಕನಕದತ ಪಗಪರರಸಲಗಗದನ.
(ಅ) ದಗವಗ ಅನತಸಸಚಯಲಲ ನಮಸದಸರತವ ವಗದಯ ಸಗಸಧತನದಲಲರತವ ವಗಹನಗಳನತನ ಕಗನಸನತಬಗಹರವಗಗ ತಮಮ ವಶಕನಕ ಪಪತವಗದಗಳಗಗಲತ ಅರವಗ ಅವರ ಪರ ಇನಗನರನತ ಆಗಲತ ಪಡನಯಬಗರದನಕದಸ ಹಗಗಸ (ಆ) ಈ ಘನ ನಗನಯಗಲಯವವ ಕತರವನ ಶಗಶಸತ ನರರಕಧಕಗಜನಯನತನ ನತಡತವ ಆದನತಶದ ಮಸಲಕ ಪಪತವಗದ ಆಕನತಪಣಗ ರಹತ ಪತಪವನತನ ವಗದಗನ ನತಡತವಕತನ ನದನತರಶನ ನತಡಬನತಕನಕದಸ ಹಗಗಸ (ಇ) ಈ ದಗವಗದ ಖರರನಸನ ಸಹಗ ಪಪತವಗದಗಳಕದ ವಗದಗನ ಕನಸಡಸಕನಸಡಬನತಕನಕದಸ ಸಹಗ ಪಗಪರರಸಲಗಗದನ.
9. Further it is relevant to extract here the relief sought in present plaint, which reads thus:
WHEREFORE, the plaintiff prays that this Hon'ble Court may kindly be pleased to pass a judgment and decree
1. declaring that defendants are not entitled to recover the possession of the schedule vehicle without due process of law;
2. consequentially declare that any amount due under hire purchase agreement dated 22.06.2001 is barred by limitation;10 O.S.No.25144/2013
3. any other order this Hon'ble Court feels necessary in the interest of justice and equity.
10. On perusal of the entire averment of the plaint it is clear that the plaintiff no where stated in the plaint that the defendants have interfered in the possession of the suit vehicle. So, on careful perusal of the observation of the Hon'ble High Court, in RFA No.413/2010, reserving the right of the plaintiff to take defence in case if the defendant chosen to proceed further with regard to either repossession of the vehicle or recovery of the amount, which according to them is due. In that event the plaintiff is entitled to take defence against the defendants in the proceedings if initiated by them against the present plaintiff. But, plaintiff is not entitled to file a fresh suit for the relief sought in O.S. No.4525/2004, unless there is a interference by the defendant for repossession or further recovery amount. But, in the case on hand, the plaintiff has not stated in the plaint that defendants have made an attempt to repossess the vehicle or they have filed any further proceedings for recovery of the said loan amount if due. The relief sought in the suit was already rejected 11 O.S.No.25144/2013 in O.S. No.4525/2004. When plaintiff can file a suit for the relief sought in the present plaint, as per the observation made by the lordship of the Hon'ble High Court in RFA No.413/2010, is that if the defendants made any attempt to repossess the vehicle or if the defendants filed any further proceedings against the present plaintiff showing the due from the plaintiff. In that event the plaintiff can file suit for injunction or plaintiff can take defence of payment in the proceedings initiated by the defendants. So, it is clear that the defendants neither interfered in the peaceful possession of the vehicle, nor filed any recovery proceedings against the present plaintiff, showing the due to them. Under such circumstances, no cause of action arose to file this suit. Hence, I hold that the suit is not maintainable for want of cause of action. Hence, I answer this point in the Negative.
11. POINT Nos.2 to 4: In view of the findings on point No.1, point No.2 to 4 are not survived for consideration.
12. POINT No.5: In view of the discussion made on points No.1 to 4, I proceed to pass the following: 12 O.S.No.25144/2013 ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 28th day of October, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE VEHICLE A HGV TIPPER of TATA make 1997 bearing Registration No.KA 05 D24 (Old NoGJ 10U9098), Chassis Number No.380044CSQ005094 and Engine Numbe 697024CSQ112487.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 13 O.S.No.25144/2013 ANNEXURES List of witness examined for the plaintiff's side:
P.W.1 Sri.K.Rajendra List of documents exhibited for the plaintiff's side:
Ex.P.1 C/C of hire purchase agreement dated 27.06.2001 taken place between the plaintiff and defendants Ex.P.2 C/C of 16 receipts for having paid installment amount (together marked) Ex.P.3 C/C of receipt dated 27.04.2004 for having received Rs.1,50,000/ by the defendants Ex.P.4 C/C of the plaint in O.S. No.4525/2004 Ex.P.5 C/C of the judgment in RFA No.413/2010 List of witness examined for the defendants' side :
NIL List of document exhibited for the defendants' side:
NIL (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH74) 14 O.S.No.25144/2013