Delhi District Court
Judgment: vs . on 23 November, 2015
-1-
In the court of Ashwani Sarpal, Addl. District & Sessions Judge1,
North East District, Karkardooma Courts, Delhi.
Sh. Kanwar Pal
vs.
Sh. Ramesh Kumar
(CS no. 31/15)
Date of filing of suit1832015
Date when order was reserved9112015
Date of final judgment23112015
(Suit for Recovery of Rs. 3,50,000/)
JUDGMENT: According to plaintiff, he purchased Tata Truck410 bearing no. DL1LG1756 from defendant vide agreement to sell dated 112 2010 for sum of Rs. 3.5 lakhs. Defendant after receiving entire sale consideration handed over physical possession of the vehicle along with its original documents. Defendant also agreed to cooperate with the plaintiff to get the vehicle transferred in his name but failed to do so on different pretext. The said vehicle was stolen in the night of 89 th July, 2011 and FIR no. 92/2011 was registered in police station Sonia Vihar under section 379 IPC. The said vehicle was lateron recovered by the police and plaintiff moved an application before ACMM court for its release on superdari. However, ld. ACMM called the defendant in the court being the registered owner of the vehicle. Defendant did not give NOC in favour of plaintiff and instead showed his desire to get the vehicle released in his favour. According to the plaintiff, defendant -2- gave a false statement before the ld. ACMM by stating that he had received only Rs. 2.5 lakhs from the plaintiff. Due to the dispute of ownership etc. the said vehicle was not released in favour of the plaintiff on superdari by the ld. ACMM. Thereafter plaintiff demanded his money back from the defendant, issued legal notice dated 182 2015 also and ultimately filed the present suit.
Defendant contested the present suit and besides taking various legal objections stated that no such agreement dated 110 2010 was executed between them and the same is forged. It is also stated that vehicle was agreed to sell for Rs. 3 lakhs according to oral terms, out of which plaintiff only paid Rs. 2.5 lakhs and balance was to be paid upto December, 2010. As per defendant, oral sale transaction took place and vehicle was to be transferred after receipt of balance Rs. 50,000/ which was never given by the plaintiff. Thereafter, it was settled in January, 2011 that plaintiff shall use the vehicle for 8 months and after earning about Rs. 30,000/ per month, he will recover his Rs. 2.5 lakhs and then the vehicle shall be returned to the defendant. It is also stated by the defendant that he is still ready to transfer the vehicle in the name of plaintiff subject to receipt of balance Rs. 50,000/.
On the basis of the pleadings of the parties, following issues were framed;
1) Whether the suit filed by the plaintiff is barred by limitation? OPD
2) Whether the suit is not maintainable under Specific Relief Act due to existence of other efficacious remedy? OPD -3-
3) Whether the plaintiff has no cause of action to file the suit? OPD
4) Whether the sale document dated 1122010 cannot be looked into being unregistered and not properly stamped? OPD
5) Whether the sale of the vehicle in question through sale agreement dated 1122010 violates section 29 and 30 of the Motor Vehicle Act and cannot be treated as a valid sale? OPD
6) Whether the plaintiff has not paid the complete sale consideration and accordingly the title of the truck has not passed over to him? OPD
7) Whether the plaintiff is entitled to recover Rs. 3,50,000/ as claimed in the suit? OPP
8) Whether the plaintiff is entitled to recover any interest and if so, at what rate and for which period? OPP
9) Relief.
In order to prove their cases, both the parties examined themselves only as PW1 and DW1 respectively. I have heard counsel for both the parties and gone through the record. My decision on above issues is as under;
Issues no. 1, 4 & 5 : Burden to prove these issues was upon the defendant but during final arguments, no argument was advanced by counsel for -4- defendant on the same and thus it can be said that defendant was not pressing these legal issues. Otherwise also, these aspects were dealt with directly or indirectly while passing an order on application of defendant under Order 7 Rule 11 CPC on 2852015 and rejected. That order was never challenged and has become final. In such circumstances, these issues are decided against the defendant and in favour of plaintiff.
Issue s no. 2, 3 and 6 : If the plaint and affidavit of evidence is read as a whole, then it reveals that sale transaction has taken place on 1122010 itself through execution of an agreement on which date plaintiff made payment and defendant delivered the possession of the vehicle. However, this fact is not correct because plaintiff PW1 admitted in his cross examination that the vehicle was taken into possession on 411 2010. He also admitted that there was an oral transaction at the time of taking possession of the vehicle whereas written agreement was executed subsequently. Plaintiff also admitted in his cross examination that vehicle was not handed over to him on the basis of agreement dated 1122010 as the possession of the same was given prior to execution of this agreement and the same was executed when he insisted for transfer of the vehicle.
From the above admissions of the plaintiff PW1, it is thus clear that defence of the defendant that there was an oral sale transaction much prior to 1122010 is correct. The version of the plaintiff regarding purchase of the vehicle, making of payment and taking of possession on 1122010 itself as stated in the plaint and affidavit is incorrect fact. Actually, the sale transaction had already -5- completed on 4112010 when plaintiff received the possession of the vehicle along with the documents. Even in the agreement to sell dated 1122010 Ex. PW1/1 this fact is mentioned that sale had already taken place on 4112010. Plaintiff thus has come to the court with unclean hands and concealed the material facts as well as tried to mislead the court in this regard. His this conduct is liable to be condemned.
The alleged agreement dated 1122010 otherwise also is not a sale agreement. The contents of this document itself shows that sale had already taken place on 4112010. Ex. PW1/1 is only a confirmation of the oral sale which took place much prior to the date of execution of the same. It is also containing certain terms in order to fix the rights and liabilities of respective parties prior and after the date of sale purchase dated 4112010. Thus, the agreement allegedly relied upon by the plaintiff Ex. PW1/1 cannot be treated as a sale agreement in real sense.
Otherwise also, this agreement dated 1122010 is not proved as per law. Defendant has disputed its genuineness and described the same as forged and fabricated document. He merely admitted his photograph on the same but not accepted his signatures or thumb impressions on it. No steps were taken by the plaintiff to examine hand writing or thumb impression expert to prove that it is containing genuine signatures or thumb impressions of the defendant. Plaintiff stated that this agreement was executed in presence of two witnesses namely Prakash and Panditji but they were not examined. Defendant even in the statement given before ld. ACMM on 1322015 Ex. PW1/3 has not specifically stated about entering into any written agreement with the plaintiff or agreement dated 112 -6- 2010. Mere admission of his photograph on this agreement by the defendant itself is not sufficient to hold that plaintiff is able to prove the genuineness and correctness of this agreement Ex. PW1/1. Hence, it is held that this agreement Ex. PW1/1 is not proved as per law.
Plaintiff has stated in his cross examination that vehicle purchased was a commercial vehicle and was in running position and in order. It remained with him for about seven months before theft but allegedly never used the same. As per plaintiff, the vehicle remained standing for seven months due to non transfer in his name. This fact on the face of it is incorrect because his own FIR Ex. PW1/7 says that he had engaged a driver for this vehicle. It was parked at a particular place (i.e. Dhallan of second pushta of Sonia Vihar) from where it was stolen. It clearly means that vehicle was being used by the plaintiff and never remained idle. Engagement of driver for the vehicle and parking at a particular place clearly shows that plaintiff is telling lie in the court that he never used the vehicle after its purchase for about seven months. Had there been no use of the vehicle for seven months, then there would not have any occasion to engage a driver for the same and to park at a particular place one day before the date of theft. Moreover, if the plaintiff is to be believed that he had made the entire payment to the defendant at the time of taking possession of vehicle on 4112010 and nothing was left due, then his conduct of not taking steps to get the vehicle transferred in his name (despite the fact that plaintiff was having knowledge that it was required to be transferred in the record of transport authority) goes against him. Further more, plaintiff never intimated defendant in writing to get the vehicle transferred in his name. He also himself did -7- not apply to the transport authority for transfer of the vehicle in his own name. Such conduct of the plaintiff in not issuing any notice to the defendant for seven months and allowing his commercial vehicle to remain in idle position cannot be believed. There is no hesitation to say that plaintiff is not disclosing the correct facts in the court and infact is basing his case on wrong facts. Law is well settled that a person who comes to the court by concealing the real facts or telling lie to the court should not be granted any relief.
Plaintiff also stated that agreement Ex. PW1/1 was executed on 1122012 when he insisted for the transfer of the vehicle but despite it he never took any steps to get it transferred till it was stolen in the night of 89th July, 2011. What was the reasons for not taking any such steps for serveral months is not explained by the plaintiff. It leads to the inference that the agreement Ex. PW1/1 is not a genuine one and was created lateron. Moreover, plaintiff is relying upon this document and according to him the sale transaction has already completed because he had already purchased the vehicle. As per terms of the agreement Ex. PW1/1, after 4112010 defendant was not liable for any consequences or repercussions pertaining to this vehicle. Thus, defendant cannot be held liable for any theft liability when vehicle was stolen from the possession of the plaintiff.
The main grievance of the plaintiff is that he could not get the vehicle on superdari from court of ld. ACMM as defendant had not given 'no objection' for this purpose as in the record of transport authority he was still the registered owner. In my view, the filing of suit for recovery by the plaintiff in such situation is not maintainable. He was required to institute the suit for declaration and mandatory injunction to get him declared as sole owner of the vehicle and to seek -8- directions for the defendant to issue NOC in order to get the vehicle transferred in the name of plaintiff in the record of transport authority as well as to take the same on superdari from the court of ld. ACMM. Plaintiff has filed the suit with the wrong relief and he was having the alternative efficacious remedy. The objection raised by the defendant in this regard regarding non maintainability of this suit is correct. There existed no cause of action for filing suit for recovery in favour of the plaintiff.
Defendant has alleged that plaintiff has not paid balance sale consideration of Rs. 50,000/ and due to this reason he has not transferred the vehicle in his name. The burden to prove this issue was upon the defendant but he failed to discharge it. Defendant had not issued any notice to the plaintiff to pay the balance amount of Rs. 50,000/ or to return the vehicle. The story alleged in the plaint that some understanding took place lateron between them in January, 2011 that plaintiff shall use the vehicle for 8 months and after recovering the money at the rate of Rs. 30,000/ per month will return the same is not proved. Even this story was not put by the defendant in the cross examination of the plaintiff. Hence, it has to be held that defendant failed to establish that he had not received balance payment of Rs. 50,000/. Sale transaction had already taken place on 4112010 on the basis of oral agreement. Accordingly, it is hereby held that there was nothing due upon the plaintiff payable to the defendant and title of the vehicle had passed over to the plaintiff on 4112010 itself. If the defendant has raised unnecessary dispute about the balance amount in the court of ld. ACMM while giving the wrong statement on 1322015 and opposed the superdari application of the plaintiff, then he can be held liable for the same by the -9- concerned court only.
From the above discussions, it is hereby held that suit of the plaintiff for recovery is not maintainable. Mere fact that defendant has failed to prove his defence does not mean that plaintiff has to be given relief what is claimed in the suit as plaintiff has to stand upon his own legs. Hence, issues no. 2 and 3 are decided in favour of defendant and against the plaintiff whereas issue no. 6 is decided in favour of the plaintiff and against the defendant.
I ssues no. 7 & 8 : In view of the above discussions, plaintiff is not entitled to any recovery of money or any interest from defendant. No amount of Rs. 3.5 lakhs or any interest on this amount is payable to the plaintiff. Thus, both these issues are decided against the plaintiff and in favour of defendant.
Issue no. 9 (Relief): As per findings of the case given above, suit of the plaintiff fails and is accordingly dismissed. Plaintiff has concealed certain material facts from the court and tried to mislead the court whereas defendant has also not given correct version before the court of ld. ACMM and unnecessary opposed the superdari application of the plaintiff. Hence, it is ordered that both the parties shall bear their own costs. Decree be prepared and file be consigned to record room.
(Ashwani Kumar Sarpal) Dated23112015. Addl. District Judge1