Delhi District Court
JudgeCumJudge vs Sh. Rishi Kumar on 29 January, 2019
IN THE COURT OF SH. VIPIN KHARB, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
Suit No. 60217/16
Sh. Awadesh,
S/o Sh. Sudarshan Singh,
R/o L1150, Mangol Puri,
Delhi. ......Plaintiff
Versus
Sh. Rishi Kumar,
S/o Sh. Sadhu Ram,
R/o C9/60, Sultan Puri,
Delhi110086. ......Defendant
Date of Institution: 15.01.2014
Date on which judgment was reserved: 22.01.2019
Date of pronouncing judgment: 29.01.2019
SUIT FOR MANDATORY & PERMANENT INJUNCTION
JUDGMENT:
1. Brief facts of the case of the plaintiff is that defendant was the owner of the vehicle bearing no. DL1VA4533 (RTVMini Bus) and the said vehicle was purchased by the plaintiff from the defendant for a sum of Rs. 4,25,000/ out of which a sum of Rs. 3,25,000/ was paid and the remaining sum of Rs. 1,00,000/ was to be paid at the time of transfer of the vehicle. Agreement was also executed between the plaintiff and defendant on 30.09.2011 and at the time of execution of the agreement, the defendant had agreed to transfer all the relevant documents related to the abovesaid vehicle. Plaintiff has also paid Rs. 40,000/ to the defendant on 30.04.2012. It also came to notice that the said vehicle was involved in an accident in case FIR No. 572/10 dt. 06.08.2010 u/s 279/337 IPC, P.S. Mangol Puri, Delhi and the documents pertaining to the vehicle were in the custody of the police. On 07.09.20163, the permit of the vehicle got expired but the defendant did not taken any action for its renewal.
Suit No. 60217/16 Awadesh Vs. Rishi Kumar 1/11 On 31.12.2013, the plaintiff reported it to the Transport Authority but defendant refused to transfer the vehicle as well as permit in the name of plaintiff, hence the present suit has been filed.
2. The defendant filed written statement stating that the defendant is the registered owner of Mini Bus having registration No. DLIVA4533, Chasis no. RAC 004836, Engine No. 3ELMB075973 and sold it for a sum of Rs. 4,25,000/ to the plaintiff and an agreement was also entered between defendant and plaintiff on 30.09.2011. The plaintiff paid Rs. 3,25,000/ to the defendant towards the purchase of vehicle on 30.09.2011 and remaining Rs. 1,00,000/, were to be payable at the time of transfer of documents of the abovesaid vehicle in the name of plaintiff. On the same day, the defendant handed over the possession of the vehicle to the plaintiff but plaintiff neither paid the balance amount nor returned the vehicle to the defendant. The defendant never agreed to transfer all the legal right of the vehicle in favour of plaintiff. The process of transfer of vehicle would get completed with the change of name of plaintiff in place of defendant in the Registration Certificate. The defendant has not received the alleged amount of Rs. 40,000/ from the plaintiff. A legal notice dt. 22.0.2014 was served upon the plaintiff. The plaintiff instead of paying the outstanding amount of Rs. 1 lacs, has filed the present suit and suit is liable to be dismissed.
3. No replication filed by the plaintiff to the written statement of defendant.
ISSUES
4. On the basis of pleadings of both the parties, issues framed by order dated 19.09.2014 are as follows:
1. Whether the plaintiff is entitled to decree of permanent injunction as Suit No. 60217/16 Awadesh Vs. Rishi Kumar 2/11 prayed for? OPP
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
3. Whether the plaintiff has not valued the present suit appropriately for the purpose of Court fees and jurisdiction? (OPD)
4. Relief?
PLAINTIFF'S EVIDENCE
5. The plaintiff examined only one witness i.e. plaintiff himself as PW1. He tendered his evidence affidavit as Ex. PW1/A and has relied upon the following documents:
1. RC as Mark X.
2. Agreement dt. 30.09.11 as Ex. PW1/2 and Notice u/s 133 MV Act as Ex.
PW1/3
3. Seizure memo of RC, Insurance certificate, Photocopy of permit, fitness certificate dt. 06.08.2010 as Ex. PW1/4;
4. Insurance certificate as Ex. PW1/5, Permit of the vehicle as Ex. PW1/6 and Fitness certificate of the vehicle as Ex. PW1/7;
5. Tax receipt dt. 20.07.2013 as Ex. PW1/8;
6. Application dt. 31.12.2013 to the transport department as Ex. PW1/9.
In his crossexamination, he deposed that he purchased RTV mini bus having registration no. DL1VA4533 from the defendant and at the time of purchase an agreement was prepared. He admitted that in this agreement it is not mentioned that the insurance certificate/ policy, fitness and permit will be handed over by the defendant to the plaintiff and he had not issued any notice to the defendant before filing of the present suit. The commercial vehicle can not ply in Delhi on becoming ten year old. He do not know whether the said vehicle is running outside of Delhi or that the transport authority can gave NOC to ten year old vehicle for registration/ plying outside Delhi (100 Km Suit No. 60217/16 Awadesh Vs. Rishi Kumar 3/11 away). He has not written to the transport authority to transfer the vehicle in his name but the transfer of the vehicles were stayed/ stopped by transport authority. The transport authority has not given him anything in writing regarding stoppage of transfer of vehicle. He denied all the suggestion given by the plaintiff.
Thereafter, Plaintiff evidence was closed.
DEFENDANTS'S EVIDENCE
6. The defendant examined three witnesses. Defendant himself as DW1. He tendered his evidence affidavit as Ex. DW1/A. In his crossexamination, he deposed that he purchased the vehicle having registration no. DL1VA4533 in the year 2003. The permit of the said vehicle was issued in his name in the year 2005. During the period from 2003 to 2005, the said vehicle was operated by him without any permit. He denied that he received Rs. 40,000/ from the plaintiff apart from the payment of Rs. 3,25,000/ and that the receipt of Rs. 40,000/ was not prepared due to the friendly relation between him and the plaintiff. The vehicle was a commercial vehicle and he had not given permit alongwith vehicle. He denied that the documents relating to the vehicle like RC, insurance certificate and permit are also sold out with the vehicle. He admitted that at the time of sale of the private vehicle, all the documents pertaining to the vehicle i.e. RC, Insurance certificate, pollution certificate etc. are to be handed over to the purchaser. He denied that at the time of sale of the commercial vehicle, the permit of the vehicle is to be handed over to the purchaser. He admitted that it was agreed between him and the plaintiff at the time of sale of vehicle in question that the plaintiff shall run the vehicle on CC permit and he was not selling the permit alongwith the vehicle. He admitted that the permit of the vehicle has no independent costs. He denied that since permit has no independent value, Suit No. 60217/16 Awadesh Vs. Rishi Kumar 4/11 therefore, it is to be sold with the vehicle. He denied that the permit of the vehicle is the part and parcel of the commercial vehicle. He denied that he has not instituted any suit against the plaintiff till date because he had sold the vehicle to the plaintiff alongwith the permit. He denied all the suggestion given by the plaintiff.
7. DW2 Sh. Harish Solanki S/o Sh. Kanwar Lal, who tendered his evidence affidavit as Ex. DW2/A. In his evidence by way of affidavit he deposed that he was well known to the defendant who sold his Mini Bus bearing Registration No. DL1VA4533 in the sum of Rs. 4,25,000/ on 30.09.2011 to the plaintiff and an agreement to this effect was entered between the parties on 30.09.2011 which was quite clear and specific that the defendant never agreed to transfer the permit in the name of plaintiff. He made signature as one of the witnesses as witness no. 2.
In his crossexamination, he deposed that transaction regarding the sale and purchase of vehicle bearing no. DL1VA4533 between plaintiff and the defendant had taken place and agreement Ex. PW1/2 was prepared in his presence and it is specifically mentioned in Ex. PW1/2 that the defendant will never transfer the permit of the vehicle in the name of plaintiff. He do not know what documents were handed over at that time. The vehicle was not handed over by the defendant to the plaintiff in his presence and the payment of Rs. 3,25,000/ was made in his presence. The permit of the vehicle was not handed over in his presence nor any talk regarding the permit of the vehicle took place in his presence between the plaintiff and the defendant. The documents of the vehicle in question were not handed over by the defendant to the plaintiff in his presence and denied that he is deposing falsely.
8. DW3 Sh. Anil Solanki S/o Sh. Kanwar Lal, who tendered his evidence Suit No. 60217/16 Awadesh Vs. Rishi Kumar 5/11 affidavit as Ex. DW3/A. His evidence affidavit was similar to evidence affidavit of DW2.
In his crossexamination, he deposed that he is working as driver in DTC. He know the defendant since the year, 1998. The sale transaction of the alleged vehicle bearing no. DL1VA4533 was taken place between the plaintiff and the defendant in his presence. It was decided between the plaintiff and the defendant that the remaining amount of Rs. 1,00,000/ will be paid by the plauintiff to the defendant at the time of the transfer of the said vehicle in the name of the plaintiff. The defendant handed over the vehicle alongwith the RC, Pollution certificate and insurance to the plaintiff at the time of the receiving of the above said amount of Rs. 3,25,000 to the plaintiff. The permit of the said vehicle was not handed over by the defendant to the plaintiff. He admitted that no commercial vehicle can run on the road without valid route permit. Volunteered that the vehicle can be sold without the permit. No talk regarding the permit of the vehicle was taken place between the plaintiff and the defendant in his presence. He admitted that he as well as Sh. Harish Solanki were remained present at the time of entire sale transaction of the said vehicle. No written document was prepared regarding the handing over the route permit pertaining to the said vehicle. One affidavit was brought by the plaintiff which was having contents regarding the sale of the said vehicle. He signed the said documents. He denied that the said vehicle was sold by the defendant to the plaintiff alongwith the permit. The permit of the vehicle can transferred to another vehicle and he denied that he is deposing falsely.
Thereafter, Defendant Evidence was closed.
9. Court have heard counsel for the parties and perused the material on record carefully and issues wise findings are as under: Suit No. 60217/16 Awadesh Vs. Rishi Kumar 6/11 ISSUES NO. 1 Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
10. On 30.11.2011, plaintiff and defendant entered into an agreement, Ex. PW1/2, vide which plaintiff agreed to purchase mini bus no. DL1VA4533 from the defendant for sum of Rs. 4,25,000/. Plaintiff paid Rs. 3,25,000/ on the same day i.e. 30.11.2011 to the defendant and defendant handed over the abovesaid vehicle to the plaintiff and the remaining amount of Rs. 1,00,000/ was to be paid by the plaintiff after getting the documents of the abovesaid vehicle transferred in his name.
As per the plaintiff, the defendant has to transfer all the documents pertaining to the mini bus no. DL1VA4533 including the route permit in the name of plaintiff whereas as per the defendant, route permit was not the part of the agreement. So, the controversy in the nutshell which is to be decided by the Court was whether the route permit of above said vehicle was the part of agreement or not?
11. To show that route permit was the part of the agreement, plaintiff has stated that the route permit of the vehicle is always transferred with the vehicle as route permit is of no use without the vehicle for which it was issued nor it has any separate monetary value. He also relied upon Section 66 of the Motor Vehicle Act, 1988, as per which no commercial vehicle can be used in any public place without valid permit. On the other hand, to show that route permit was not the part of the agreement, the defendant has examined DW2 and DW 3, who were the witnesses to the agreement Ex. PW1/2 and also relied upon Section 82 and 83 of the Motor Vehicle Act, 1988.
Suit No. 60217/16 Awadesh Vs. Rishi Kumar 7/11
12. DW2 and DW3 were the witnesses to the agreement Ex. PW1/2 and both have specifically deposed that defendant never agreed to transfer the permit of mini bus no. DL1VA4533 to the plaintiff and no talks regarding the permit of the vehicle took place and the abovesaid vehicle alongwith all the remaining documents were handed over to the plaintiff.
So, there is no mention of route permit in the Ex. PW1/2 and both the witnesses to the agreement have also specifically stated that no talks regarding the transfer of permit of the vehicle took place between the plaintiff and defendant.
13. Now let us consider the contention of the plaintiff that route permit was always sold with the vehicle for which they have issued. Section 82 of the Motor Vehicle Act, 1988 is the relevant provision which is reproduced hereinbelow: Section 82 : Transfer of permit : (1) Save as provided in subsection (2), a permit shall not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit.
(2) : Where the holder of a permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit if it had been granted to himself.
(3).........................
Plain reading of Section 82 shows that transfer of route permit is not a norm and it can only be transferred after seeking the permission of the concerned Transport Authority. Further, Section 82 states that a person to whom a vehicle covered by the permit has been transferred has no right to use the vehicle in the manner authorized by the permit, which clearly shows that a Suit No. 60217/16 Awadesh Vs. Rishi Kumar 8/11 vehicle can be sold to another person without transferring of the route permit issued on the vehicle.
14. So, the contention of the plaintiff that vehicle cannot be sold without route permit does not hold any ground. Further a route permit can only be transferred with the permission of the concerned Transport Authority but in his cross examination, plaintiff has admitted that he has not written anything to the transport authority for transferring the vehicle in his name, this shows that plaintiff made no efforts to get the route permit of the mini bus no. DL1VA 4533 transferred in his name. So, it also indicates that transfer of route permit was never part of the agreement.
15. Plaintiff has also contended that a route permit is of no use or value without the vehicle for which it is issued. This contention also does not hold any ground as as per section 83 of the Motor Vehicle Act, 1988, after the permission of the Concerned Transport Authority, vehicle on which route permit was issued can be replaced. Section 83 of Motor vehicle Act, 1988 permits the defendant to purchase a new vehicle on the basis of the route permit of mini bus no. DL1VA4533. Section 83 of the Motor Vehicle Act, 1988 is the relevant provision which is reproduced hereinbelow: Section (83) Replacement of vehicles The holder of a permit may, with the permission of the authority by which the permit was granted, replace any vehicle covered by the permit by any other vehicle of the same nature.
So, Court has no hesitation to hold that transfer of route permit of the mini bus no. DL1VA4533 was not the part of agreement Ex. PW1/2 and neither any oral agreement regarding transfer of route permit took place Suit No. 60217/16 Awadesh Vs. Rishi Kumar 9/11 between them.
16. As per order no. F.21/5/Secy/STA/2002/RTV/256 dated 01.08.2014 no permit which has expired on or before 31.12.2013 can be renewed. The date of expiry of route permit, Ex. PW1/6, is 07.09.2016, therefore, the route permit of mini bus no. DL1VA4533 cannot be renewed and transferred now.
In view of the discussion above, in the concerned opinion of the Court, the route permit was never part of the agreement regarding selling of mini bus no. DL1VA4533 between the plaintiff and the defendant. Therefore, issue no. 1 is decided against the plaintiff and in favour of defendant.
ISSUES NO. 2Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
17. As route permit was never part of the agreement between the plaintiff and the defendant, therefore, no direction can be given to the defendant to transfer the route permit of mini bus no. DL1VA4533 in the name of the plaintiff.
It is proved that defendant has sold the mini bus no. DL1VA4533 to the plaintiff through agreement Ex. PW1/2, as per which, plaintiff can get the documents of the mini bus no. DL1VA4533 transferred in his name after paying the remaining amount of Rs. 1 lac to the defendant. If, defendant is not transferring the RC of the Mini bus no. DL1VA4533 in the name of the plaintiff, it means that defendant is not performing his part of the contract Ex. PW1/2. If one party is not performing part of his contract then the other party has the remedy of seeking the specific performance of the contract. In the facts of the plaint, the plaintiffs also have the remedy of seeking the specific performance of the contract from the defendant.
Suit No. 60217/16 Awadesh Vs. Rishi Kumar 10/11
18.In the present suit plaintiff has only sought the relief of mandatory injunction and the said relief is governed by The Specific Relief Act, 1963. As there is another mode by which equally efficacious relief i.e. transferring of RC of Mini bus No. DL1VA4533 in the name of plaintiff, can be certainly obtained by the plaintiff, therefore, in the present suit relief prayed i.e. injunction cannot be granted under Section 41 (h) of The Specific Relief Act, 1963.
Therefore, present relief is barred by Section 41 (h) of The Specific Relief Act, 1963 and hence, present relief cannot be granted to the plaintiff. Therefore, issue no. 2 is decided against the plaintiff.
ISSUES NO. 3Whether the plaintiff has not valued the present suit appropriately for the purpose of Court fees and jurisdiction? (OPD)
19. The onus to prove this issue was on the defendant but he has not led any evidence to discharge his onus. Therefore, issue no. 3 decided against the defendant.
RELIEF Plaintiff is not entitled to any relief and suit is dismissed. Parties will bear their own cost. Decree sheet be prepared accordingly.
File be consigned to Record Room. Digitally
signed by
VIPIN
VIPIN KHARB
KHARB Date:
2019.01.31
17:00:06
Announced in the open Court (Vipin Kharb) +0530
on day of 29 January, 2019 Additional Senior Civil Judge cum Judge, th Small Causes Court cum Guardian Judge, NorthWest District, Rohini, Delhi Suit No. 60217/16 Awadesh Vs. Rishi Kumar 11/11