Delhi District Court
Shri Tara Kant Jha vs M/S Rare Fuel & Automobiles on 20 February, 2013
CS No. 369/12
IN THE COURT OF SH. SUSHANT CHANGOTRA, CIVIL
JUDGE 6,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No. 369/12
Shri Tara Kant Jha,
S/o Late Sh. Laxmi Kant Jha,
R/o 923, Pushp Vihar, Sector07,
New Delhi110017.
.................. Plaintiff.
Versus
M/s Rare Fuel & Automobiles
Technologies Private Limited,
through its proprietor or Mrs. Shital Singh,
F320A, Old. M.B. Road, Lado Sarai,
New Delhi110030.
.......... Defendant
Date of filing of Suit : 25.07.2002.
Date of decision : 20.02.2013.
Suit for mandatory injunction and recovery of
loss /damages and future loss/pendente lite expenses.
JUDGMENT
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CS No. 369/12
1. The case of the plaintiff in brief is that plaintiff purchased the bus bearing no. DL1PA3839 and is engaged in business of transport. Mr. Diwakar Singh, cousin brother of the defendant and Mr. A.K. Jha a common friend of plaintiff introduced the plaintiff to the defendant. The defendant approached the plaintiff for converting of the CNG kits in his bus bearing no. DL1PA3839. He has also handed over the quotation dated 29.01.2002 duly signed by the office bearer. The plaintiff agreed to convert the CNG kits in his bus for a sum of Rs.3,50,000/ and the defendant converted the CNG kit in the abovesaid bus on 18.02.2002. He extended the warranty period of one year for the converted CNG kits of the bus.
2. In the first week of June, 2002, there was a leakage of gas from the filling point of the cylinder which was brought to the knowledge of the defendant on 10.06.2002. The defendant conveyed to the plaintiff that it cannot be replaced due to nonavailability of required necessary items to be replaced. The same will be replaced within shortest time as per the availability of the said items.
3. On 11.07.2002, Mr. Diwakar called the plaintiff to get his vehicle repaired. Plaintiff sent his bus to the service center at 2 CS No. 369/12 Ghitorni. However, neither the problem was rectified nor the bus was handed over. On the next day the driver of the said bus namely Mr. Attar Singh was sent to the service station of the defendant to take the bus but the mechanics and the supervisor of the defendant company namely Sh. Santosh demanded a sum of Rs.20,000/ for purchasing the necessary items.
4. The plaintiff is suffering damages of Rs.2,500/ per day. Thus, plaintiff prayed for decree of mandatory injunction directing the defendant to rectify/repair the necessary gas leakage problem and to handover the possession of bus to the plaintiff. He further prayed for decree of Rs.35,000/ as recovery of arrears of loss @ Rs. 2,500/ per day. He further prayed decree of damages @ Rs.2,500/ per day w.e.f. 25.07.2002 till passing of the decree.
5. The defendant filed written statement and took preliminary objections. He pleaded that plaintiff does not have the locus standi as he has no right, title or interest in suit property (i.e. bus no. DL1P A3839). This court does not have pecuniary jurisdiction and plaintiff has not paid proper court fees. The plaint is bad for misjoinder and nonjoinder of proper and necessary parties. 3 CS No. 369/12
6. On merits the defendant pleaded that bus no. DL1PA3839 belongs to Mr. Jai Kishan. Mr. Diwakar is the director of the company and company is a legal person and not a real person. The plaintiff came to defendant on the basis of advertisements. The plaintiff took a quotation for conversion and having agreed to the terms and conditions of the defendant company, plaintiff brought the aforesaid bus for conversion of the same from diesel to CNG. He made a part payment, whereas, a sum of Rs.66,400/ was promised to be paid after the test drive, but the same has till date has not been paid. The plaintiff did not fulfill his own obligation therefore he cannot seek enforcement of contract against defendant. The defendant has been continuously requesting the owner of bus to pay the balance of sum as Rs.1,56,400/ and take delivery of bus but no payment has been received. The plaintiff has filed the present suit for grabbing the bus without making payment of money. The defendant further pleaded that there is no fault of the defendant. The defendant has requisite certificate for conversion of bus from diesel to CNG. Thus, defendant prayed that suit be dismissed.
7. From the pleadings following issues were framed: 4 CS No. 369/12
(i) Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for?OPP.
(ii) Whether the plaintiff is entitled to the recovery of any amount towards damages, future and pendentlite interest as prayed for? OPP.
(iii) Whether the suit has not been valued properly for the purpose of court fee and jurisdiction?OPD.
(iv) Whether the suit is bad for misjoinder and nonjoinder for the necessary and proper party?
(v) Relief.
8. The plaintiff was given permission to add another plaintiff vide order dated 14.02.2003. Thereafter plaintiff examined himself as PW1. The right of defendant to crossexamine PW1 was closed vide order dated 27.07.2009. The counsel for plaintiff closed PE on 01.02.2010. The defendant was given repeated opportunities for leading DE. Defendant did not file any affidavit and its evidence was closed vide order dated 22.05.2010. Thereafter an application u/s 151 of CPC was filed by the plaintiff as his affidavit could not be tendered earlier. The opportunity was given vide order dated 5 CS No. 369/12 18.04.2011. Then the plaintiff tendered his affidavit and right to crossexamine PW1 was closed vide order dated 13.12.2011. The defendant was then proceeded exparte vide same order. Then plaintiff filed application u/s 151 of CPC for tendering additional affidavit. Then the plaintiff tendered his additional affidavit Ex. PW1/B along with documents as Ex. PW1/X and Ex. PW1/Y.
9. I have heard the oral arguments of plaintiff and also gone through written arguments filed by the counsel for plaintiff. My issue wise findings are given as below: ISSUE No. 1
10. Onus to prove this issue was on the plaintiff. The plaintiff had initially claimed in the plaint that bus be returned to him by defendant. Though in the written arguments, it has been mentioned that bus be returned, however, the plaintiff himself stated in the oral arguments that he does not want the bus as it is in a bad shape.
11. The plaintiff has sued the defendant company through its proprietor. The proprietorship of a concern is not the same thing as being the director of a private limited company. Every company is a 6 CS No. 369/12 legal entity in itself and has a juristic personality. It can only be sued through its managing director or directors. A private limited company cannot be sued through a proprietor as there is none. The suit of the plaintiff suffers from technical defect which has not be cured during the length of trial.
12. The plaintiff has deposed and argued that he has paid more than the amount which was due towards the defendant. The plaintiff has deposed that he was instructed by defendant to pay Rs.1,47,000/ to one Lalit body builder. He further paid Rs.24,000/ to Capital Tyres and Rs.37,860/ to Palco Motors. However, there is no pleading to this extent in the plaint. In Parkash Rattan Lal vs. Mankey Ram, 166 (2010)DLT 629, the Hon'ble Delhi High Court held that, "Evidence cannot travel beyond pleadings. The law provides a procedure for amending the pleadings and if there are new facts which the party wanted to bring on record, the party can amend pleadings, but without amendment of pleadings, a party cannot be allowed to lead evidence beyond pleadings." Therefore, the evidence of plaintiff to that extent cannot read in evidence.
13. Even otherwise the contention in deposition as mentioned 7 CS No. 369/12 above are to the extent that the said documents were made at the instance of defendant. The defendant is a juristic personality. Even the directors are not competent to direct another customer to make any payment on behalf of company to third person. Moreover, the plaintiff has not filed any resolution of defendant company authorizing the director for redirecting the payment of funds to a third person.
14. Therefore, the plaintiff has failed to prove that he had paid the full payment to the defendant. The obligation of the defendant to return the vehicle would have only arisen when the plaintiff himself had payed the sum due to be paid by him. The bus was given to defendant company for conversion of CNG kits, therefore, the aforesaid delivery of goods constituted 'bailment'. Section 148 of the Indian Contract Act defines bailment, bailor and bailee it is reproduced below: " Bailment", "bailor" and "bailee" defined. A "bailment" is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is 8 CS No. 369/12 accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the "bailor". The person to whom they are delivered is called the 'bailee".
15. Section 170 of the Indian Contract Act provides for bailee's particular lien. It is reproduced below: Bailee's particular lien " where the bailee has, in accordance with the purpose of the bailment, rendered any service involving the exercise of labour or skills in respect of goods bailed, he has, in the absence of a contract to the contrary, a right to retain such goods untill he receives due remuneration for the services he has rendered in respect of them.
16. The illustration (a) of Section 170 of the Indian Contract Act clarifies beyond doubt that the defendant had a right to retain the bus till he is paid the balance amount. The aforementioned illustration squarely applies to the facts of the present case. It is also reproduced below:
9 CS No. 369/12
(a) A delivers a rough diamond to B, a jeweller, to be cut and polished, which is accordingly, done. B is entitled to retain the stone till he is paid for the services he has rendered.
17. The plaintiff did not make the entire payment, therefore, the defendant company had a right to retain the bus and the plaintiff is not entitled to relief of mandatory injunction directing defendant to return the vehicle for which the entire payment has not been made by the plaintiff. Accordingly, this issue is decided against the plaintiff and in favour of defendant.
ISSUE No.2
18. Onus to prove this issue was on the plaintiff. The plaintiff has filed power of attorney and an affidavit of the original owner. These documents show that the plaintiff had acquired interest in the vehicle. The plaintiff is infact claiming damages for non usage of the vehicle. However, the plaintiff has not proved any permit on record which authorized him to run the vehicle. In absence of permit the 10 CS No. 369/12 plaintiff could not have run the commercial vehicle i.e. a bus. The permit is non transferable under the Motor Vehicles Act.
19. Since, the plaintiff could not have run the bus, therefore, he is not entitled to damages as prayed. Accordingly, this issue is decided against the plaintiff and in favour of defendant. ISSUE No.3
20. Onus to prove this issue was on the defendant. No evidence has been lead by defendant to prove this issue. Neither any argument has been advanced. The suit is for mandatory injunction and damages. According to Section 7 (iv)(d) the plaintiff was only required to mention the value at which he values the relief sought. The plaintiff was at liberty to value the suit according to his wishes. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
ISSUE No.4
21. The defendant took objection of misjoinder and non joinder of necessary parties. The objection was to the extent that the plaintiff did not join the original owner as a party. The aforesaid 11 CS No. 369/12 objection was meeted out during the trial by impleading the original owner as plaintiff no.2. Accordingly, this issue is decided against the defendant and in favour of plaintiff.
RELIEF
22. In view of the findings given on the issues no. 1 and 2, suit of the plaintiff is dismissed with costs. Decree sheet be prepared. File be consigned to record room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA)
On 20.02.2013 CIVIL JUDGE06 (WEST)
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