Karnataka High Court
Sri Ravindra Gowda vs M/S Sachitra Automobile & Fabrication on 3 April, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
REGULAR SECOND APPEAL No.677/2012 (MON)
BETWEEN:
Sri. Ravindra Gowda
S/o Channabasappa Gowda,
50 Years, Agriculturist,
Suragoppa, Thalaguppa - Hobli,
Herenellur - Post, Sagara - Tq
Shivamogga Dist- 577401. .. Appellant
(By Sri. S. Rajashekar, Amicus Curiae)
AND:
M/s Sachitra Automobile And Fabrication
By Its Proprietor,
Sri. H.K. Nagappa Gowda,
S/o Krishnappa Gowda,
71 Years,
Presently R/at H.G.C. Tower,
P.W.D Quarters Road,
Govt. Bus Stand, N.T.Road,
1st Cross,
Shivamogga Dist-577201. .. Respondent
(By Sri. Bayya Reddy, Advocate)
RSA.No.677/2012
2
This Appeal is filed under Section 100 of CPC, against
the judgment and decree dated 06.01.2012 passed in
R.A.No.53/2011 on the file of the Presiding Officer, Fast
Track Court-III, Shivamogga, dismissing the appeal and
confirming the Judgment and Decree dated 09.11.2010
passed in O.S.No.319/2006 on the file of the Prl. Civil Judge
(Sr. Dn.) & CJM, Shivamogga.
This Appeal coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
The present respondent had instituted a suit against the present appellant in the Court of Prl.Civil Judge (Sr.Dn.) & C.J.M., at Shivamogga, (henceforth for brevity referred to as "the trial Court") in O.S.No.319/2006, for recovery of a sum of `1,16,200/- with interest thereupon.
2. The summary of the case of the plaintiff in the trial Court was that it was an authorised dealer of Mahashaktiman Shrachi Power Tiller, having its Regional Office at Bengaluru. The plaintiff was one of its agent, authorized and employed to sell the said Tillers at RSA.No.677/2012 3 Shivamogga and Chikmagalore Districts. The Union of India and State of Karnataka had evolved and implemented a joint scheme to grant subsidy to Power Tiller purchased by small bona fide agriculturists for their bona fide purposes to enable them to grow more food. The subsidy amount extended was 50% of the Tiller price and the condition to grant subsidy was the balance 50% of the price was to be met and paid by the purchaser. The further condition was that the purchasing agriculturist was to pay the full Tiller price to the seller and obtain receipt for the same and produce the same before the concerned Assistant Director of Agriculture and on the said receipt only, the Assistant Director of Agriculture was to direct the seller to deliver the Power Tiller to the purchaser with all its accessories and documents. The seller, on receipt of such direction, was to deliver the Power Tiller with all those documents to the purchaser with a Temporary Registration Certificate. RSA.No.677/2012 4 The purchaser thereafter to claim the subsidy amount through the Assistant Director of Agriculture and he would be released in his favour the subsidy amount of `45,000/- by cheque.
3. The intending agriculturists to purchase the Power Tiller were in need of necessary funds to make payment of full Tiller price to the seller and having no funds, had developed an understanding with the seller. That the seller to issue a receipt indicating the Tiller price as received from the intending purchasers, without, in fact, receiving any amount from the purchaser on the assurance of the purchasers that they would pay the Tiller price as mentioned in the receipt issued, but, after receipt of the subsidy amount from the Government. This was only to enable and facilitate the poor agriculturists to purchase the Tiller under the Scheme.
The defendant approached the plaintiff's Manager on RSA.No.677/2012 5 18.02.2005 and persuaded him to issue such a receipt for purchase of Tiller to enable him to purchase the Power Tiller for `90,000/-. This was to enable the purchaser to produce the said receipt before the Assistant Director of Agriculture, Sagar, and to get the subsidy amount. The farmer had to pay the price of the tiller i.e., `90,000/- as per the receipt, on receipt of subsidy amount. Accordingly, the Manager of the plaintiff bona fide believing the version of the defendant, issued a receipt of a sum of `90,000/-, the price of the Tiller. The defendant had produced the said receipt before the Assistant Director of Agriculture, Sagar, and got issued a direction to the plaintiff to deliver the Tiller. Accordingly, the plaintiff delivered the said Tiller to the defendant. The defendant thereafter received the subsidy amount of `45,000/- from the Government, but, failed to pay the Tiller price to plaintiff. In that regard, the plaintiff issued a letter to the defendant demanding RSA.No.677/2012 6 the price of the Tiller, for which, the defendant got issued an untenable reply.
4. The defendant in his written statement contended that the suit was not maintainable. Further he stated that he had purchased one Mahashaktiman Shrachi Power Tiller on 18.02.2005 from the plaintiff by paying the entire sale amount of `90,000/-. Accordingly, the plaintiff issued a receipt to that effect. As such, he has not due of any amount to the plaintiff. The defendant further contended that, during the month of August, 2005, the engine of the Tiller got some trouble and the same was intimated to the plaintiff. In the guise of attending to its repair work, the plaintiff got the custody of the said Tiller, which, till today, is in the custody of the plaintiff. Though he admitted that he has received a letter dated 31.12.2005 from the plaintiff demanding the payment of price of the Tiller, but, stated RSA.No.677/2012 7 that he had suitably replied for the same. The defendant has also acknowledged the receipt of the notice dated 13.06.2006 by him. Stating that due to non-availability of the Tiller for agriculture work, he was put to great inconvenience and incurred expenses, for which, the plaintiff is liable to pay damages to him, the defendant prayed for dismissal of the suit.
5. Based upon the pleadings of the parties, the trial Court framed the following issues:
1) Whether the plaintiff proves that the defendant is liable to pay a sum of `1,16,200/- towards the price of power tiller?
2) Whether the defendant proves tat the plaintiff had wrongfully taken back the power tiller without returning it.
3) Whether plaintiff is entitled for relief claimed?
4) What decree or order?RSA.No.677/2012
8
6. In support of his case, the plaintiff got himself examined as PW-1 and got examined one more witness as PW.2. He has also got produced and marked the documents from Exs.P-1 to P-22. Defendant got himself examined as DW-1 and also got the documents marked from Exs.D-1 to D-3.
7. The trial Court after hearing both side and considering the material placed before it, answered issue No.1 holding the plaintiff entitled for a sum of `90,550/-, issue No.2 in the negative and issue No.3 in the affirmative and by its judgment and decree dated 9.11.2010, it decreed the suit of the plaintiff with cost.
8. Being aggrieved by the judgment and decree of the trial Court, the defendant preferred an appeal before the Court of the Fast Track Court-III, Shivamogga, (henceforth for brevity referred to as "the First Appellate Court") under Section 96 of the Code of Civil Procedure, RSA.No.677/2012 9 in R.A.No.53/2011. The respondent therein appeared before the Court and contested the matter.
9. The First Appellate Court framed the following points for its consideration:
1) Whether the Trial Court committed any error in partly decreeing the suit of the plaintiff with cost?
2) Whether the defendant has proved that, he has paid excess Court fee of `1,220=00 as stated in I.A.No.2?
3) Whether the application filed by the defendant under Order 41 Rule 27 of CPC as per I.A.No.4 deserves to be allowed?
4) Whether the Judgment and Decree of the Trial Court calls for any interference by this Court?
5) What Decree or Order?RSA.No.677/2012
10 After hearing both side, the First Appellate Court answered point Nos.1 to 4 in the negative and by its judgment and decree dated 6.1.2012, it dismissed the appeal of the defendant by confirming the judgment and decree passed by the trial Court.
10. It is against the said judgment and decree of the First Appellate Court, the defendant has preferred this appeal.
11. This Court while admitting this appeal, framed the following substantial question of law :
" (i) Whether the courts below were justified in granting a decree for `90,000/- with interest despite the fact that the plaintiff was in custody of the engine said to have been sold to the defendant and whether a lien and recovery proceedings could be simultaneously enforced against the defendant (appellant herein)?
RSA.No.677/201211
(ii) Whether the courts below committed an error in appreciating the documents Exs.D1 to D3 and directing the defendant (appellant herein) to pay a sum of `90,000/- with interest?"
12.The appellant herein is being represented by the learned counsel Sri S.Rajashekar, who has been appointed as Amicus Curiae. In response to the notice, the respondent is being represented by their Counsel.
13. The lower Court records were called for and the same are placed before the Court.
14. Heard arguments of learned Counsel from both side. Perused the materials placed before this Court.
15. For the sake of convenience, the parties would be referred to henceforth with the ranks they were holding before the trial Court respectively. RSA.No.677/2012 12
16. Learned counsel for the appellant/defendant in his argument submitted that as per the scheme as alleged by the plaintiff, the defendant had paid 100% of the price of the tiller and it was only thereafter, the receipt at Ex.D.1 was issued to him. PW-1 in his cross- examination has also admitted the issuance of said receipt by the plaintiff. The said aspect has not been properly appreciated by the Courts below. Learned counsel further submitted that without analysing the evidence of PW-2 properly and without noticing that PW-2 has specifically pleaded his ignorance about the defendant making payment of the price of the tiller to the plaintiff, both the Courts below have simply embraced his evidence and decreed the suit as prayed for by the plaintiff. Learned counsel further submitted that when the plaintiff, through PW-2, has admitted the receipts at Exs.D-2 and D-3, what made him to dispute Ex.D-1 about the receipt of consideration thereunder RSA.No.677/2012 13 was not properly analysed or reasoned by the Courts below.
Per contra, learned counsel for the respondent/plaintiff in his arguments submitted that the transaction was purely based upon the good faith only to help poor agriculturists. As such, without any consideration, the plaintiff-Company was issuing the receipts showing that the entire sale consideration has been received by it. The defendant has misused the said scheme which is evident by the depositions of PWs.1 and 2, which have been rightly appreciated by the Courts below. As such, the impugned judgment and decree passed by the Courts below does not warrant any interference at the hands of this Court.
17. It is not in dispute that the plaintiff was an agency dealing with Mahashaktiman Shrachi Power Tiller RSA.No.677/2012 14 in the Districts of Shivamogga and Chikmagalur. It is also not in dispute that the Union of India in collaboration with Government of Karnataka had evolved a scheme under the name `Grow More Food', whereunder, it gives 50% of the price of a power tiller to the farmers as subsidy. It is also not in dispute that a farmer to be eligible for the said scheme, shall at the first instance, to pay the total sale price of the tiller, which in the instant case, is `90,000/-, to its dealer and thereafter, produce the receipt to the Department of Agriculture for reimbursement of 50% amount in the form of subsidy. It is also not in dispute that on 18.2.2005, the defendant purchased a tiller from the plaintiff with an intention to avail the benefit of the said `Grow More Food' scheme. However, the main point of contention is that, at the time of purchasing of the said tiller by the defendant from the plaintiff, whether the entire sale price was paid by him or no amount was paid RSA.No.677/2012 15 as averred by the plaintiff. Both the Courts below while arriving at a conclusion that the plaintiff was able to prove that the defendant had not paid the tiller price to it, have decreed the suit of the plaintiff.
18. The plaintiff on its behalf, examined one Sri H.K.Nagappa Gowda, who is said to be the Proprietor of the plaintiff-firm as PW-1, who, in his examination-in- chief, has reiterated the plaint averments and contended that in the absence of any payment made by the defendant, he had issued a receipt to the defendant acknowledging the receipt of the entire sale consideration of `90,000/- only to enable him to get subsidy from the Government which was to be released only after production of such receipt. Further, the said subsidy was 50% of the said sale price amounting to `45,000/-. In that regard, though PW-1 got produced and marked documents from Exs.P-1 to P-22, but, the RSA.No.677/2012 16 relevant documents with respect to the alleged sale transaction of the tiller are at Ex.P-8 - the copy of the receipt, Ex.P-9 - Tax Invoice, Ex.P-13 - a letter dated 10.3.2005, Ex.P-15 - reply notice and Ex.P-16, a copy of the legal notice dated 13.6.2006. A perusal of a tax invoice at Ex.P-5, the quotation at Ex.P-6 and the tax invoice Ex.P-9 and the credit bills at Exs.P-10 and P-11, no where gives any reference to arrive at a conclusion that the seller/plaintiff has sold the vehicle for no consideration. On the other hand, all these tax invoices and bills go to show the price of the tiller at `90,000/-, for which, `45,000/- is shown as the payment to be made by the farmer and the remaining amount is shown as the Central and State subsidy shares. Therefore, no documents of sale which are produced by the plaintiff would go to show that for no consideration, the receipt was issued by the plaintiff. Incidentally, the plaintiff has not produced the copy of the receipt said to have been RSA.No.677/2012 17 issued by them in favour of the defendant. The copy of the receipt which is at Ex.P-8 is a receipt issued in the name of one Sri Badiya Naika, who was examined by the plaintiff as PW-2. On the other hand, it is the defendant who has produced three receipts said to have been issued by the plaintiff in his favour and marked them as Exs.D-1 to D-3. Among these three receipts, Ex.D-1 is the receipt towards the total price of the power tiller sold by the plaintiff in favour of the defendant. The said receipt in clear terms acknowledges a receipt of a sum of `90,000/- by the plaintiff to the defendant towards the sale of Mahashakthiman Shrachi Power Tiller 12 HP, the receipt is dated 18.2.2005. PW-1 in his cross-examination, has in clear terms, admitted that the said receipt at Ex.D-1 had been issued by him. He has also admitted that the other two receipts at Exs.D-2 and D-3 were also issued by him and admitted the receipt of consideration under two other receipts, but not at RSA.No.677/2012 18 Ex.D-1. The only reason given by him to that effect is that Ex.D-1 was issued only to enable the defendant to get the subsidy on an understanding that he would pay the entire sum of `90,000/- to the plaintiff once he receives the subsidy.
19. The plaintiff also got examined one Sri Badiya Naika as PW-2, who has deposed stating that he too was one of such beneficiary under the Scheme of `Grow More Food' and that himself, along with one more farmer, had availed the same benefit, whereunder, without making any down-payment, they were also given with similar receipt issued by the plaintiff's agency, which they produced before the Directorate of Agriculture and availed the subsidy scheme.
When the evidence of PW-2 is read in its entirety, it can be observed that, though he has stated that likewise, he availed the benefit of the receipt, the RSA.No.677/2012 19 defendant also availed the benefit of the receipt from the plaintiff, but, he has no where stated as to what is the source of his knowledge to that effect. It is not his case that, himself, joined by the defendant, approached the plaintiff for purchase of the tiller together. It is not even his case that he was present when the sale transaction or negotiation had taken place between the plaintiff and the defendant. It is also not his case that he was made known or aware of the transaction between the plaintiff and the defendant and was requested to be a witness to the said transaction. In the absence of any of these necessary or essential details, merely because PW-2 states that defendant also had availed the benefit of a similar receipt like the one he had availed, cannot be considered as a believable evidence, believing him to be a person having the knowledge of the transaction between the plaintiff and the defendant. On the contrary, PW-2 in his cross- RSA.No.677/2012 20 examination has stated that he approached PW-1, the Proprietor of the plaintiff and expressing his difficulties, he obtained a receipt. He has given the details of how he made use of the receipt in getting the benefit of the subsidy. However, he specifically stated that he does not know who gives the receipt to whom and what that receipt was made use of by the recipient and how much of subsidy was received by the party. Further he has also specifically stated in his cross-examination that, he does not know when did the defendant paid money to the plaintiff. He also stated that he does not know whether any amount has been paid by the defendant to the plaintiff. He went to the extent of stating that he does not know what the affidavit evidence in the form of examination-in-chief contains. He does not know who has prepared his affidavit evidence. Thus, apart from disowning the authorship of his examination-in-chief, which is in the form of a sworn affidavit, he has in clear RSA.No.677/2012 21 and unequivocal terms has stated that he does not know whether any amount has been paid by the defendant to the plaintiff. That being the case, the evidence of PW-2 would not enure to the benefit of the plaintiff.
20. The evidence of PW-1 as analysed above, though speaks about the scheme that before availing the subsidy from the Government, the farmer should have to pay the entire sale consideration and only then produce the receipt before the Assistant Director, Agriculture Department, but himself has later said that with some understanding and to help poor farmer, they were issuing the receipt without collecting any amount from the farmer. That means, how the Government scheme was attempted to be misused with the connivance of the plaintiff, has been explained or countered by the plaintiff himself. Thus, it cannot be straight away taken at its facial value that the plaintiff RSA.No.677/2012 22 was issuing a receipt at no consideration, however, acknowledging that it had received the entire sale consideration in it.
Secondly, had really the belief of the plaintiff was that the agriculturists were poor persons and would not make out money to pay the sale consideration, then, it is not acceptable as to how come he issues a receipt acknowledging the receipt of the entire sale consideration without even collecting 50% of the sale amount, which, under any circumstances, has to be borne by the farmer/purchaser himself and the same would not be a part of subsidy to be given by the Government at a later date. No businessman would take the responsibility of several thousands of rupees upon him, which in the instant case, a sum of `90,000/, without any documentation or security in favour of a stranger like the defendant in the instant case and give RSA.No.677/2012 23 him a receipt acknowledging the receipt of entire sum of `90,000/- and also delivers the goods (tiller) without receiving a single rupee. Had really the plaintiff was interested in helping the defendant, at the maximum, he should have asked the defendant to deposit his contribution of 50% in the total sale value and properly protected his interest through relevant and proper documentation for ensuring the receipt of the remaining 50% of sales consideration once the purchaser/defendant get that amount as a subsidy from the Government. Here the plaintiff claim to be the reputed dealer in the Power Tillers and other accessories, has not even bothered to protect his business interest and simply says that with good faith, he has issued a receipt for entire sale consideration and also delivered the goods without taking any security or documentation from the defendant. Therefore, the contention of the plaintiff that though the Scheme was there to pay the entire amount RSA.No.677/2012 24 and only then to issue receipt, with an intention to help the farmer he had issued the receipt acknowledging the entire sum when, in fact, he has not even received a single rupee under it, is not acceptable.
However, both the Courts below without going through what the scheme of the Government was, as carried by the plaintiff, were carried away by the evidence of PW-1 that with an intention to help poor agriculturists, he was issuing receipts for the entire amount without any consideration thereunder. Further, both the Courts below were also carried away with the evidence of PW-2 without even observing as to he had any source of knowledge to depose what he had stated in his examination-in-chief. Without looking to the cross- examination part of his evidence, where he has categorically disowned the authorship of his affidavit evidence and also expressed his ignorance about the payment of money by the defendant to the plaintiff, RSA.No.677/2012 25 both the Courts below were carried away by counting the number of witnesses, than the quality and veracity in the evidence of the witnesses.
21. Both the Courts below have also made one more observation in their judgment to the effect that had really the defendant made the payment of the entire amount on 18.2.2005 itself, why did he took the delivery of the tiller two months thereafter, that was on 6.4.2005, thus, the said delayed factor of receiving the possession of the goods under sale would enure to the benefit of plaintiff in believing his case. It has to be observed that while arriving to such a conclusion, both the Courts below have omitted to notice the very pleading , as well the evidence of PW-1 to the effect that even according to the plaintiff, the Scheme was that, after the farmer who purchases the tiller, by making 100% payment, produces the receipt before the RSA.No.677/2012 26 Assistant Director of Agriculture, the tiller would be delivered by the seller/dealer to the farmer only after the said Assistant Director of Agriculture gives a direction of delivery of the tiller to the farmer, to the seller. In the instant case, even though the defendant had made payment as per Ex.D-1 on 18.2.2005 itself, such a instruction of the delivery of the tiller was made by the Assistant Director of Agriculture, Sagara, addressing to the plaintiff only on 10.3.2005 as could be seen from Ex.P-13. The said direction specifically mentions that as per the Scheme, since the farmer has paid the amount, the Power Tiller has to be delivered to him and copy of the Delivery Note , insurance coverage and the temporary registration note, has to be submitted to their office. Thus, after receipt of such a direction for delivery of the tiller, the plaintiff has taken steps to deliver the tiller to the defendant, which has enabled him to deliver the tiller only on 6.4.2005. Thus, RSA.No.677/2012 27 without further delay, after receipt of Ex.P-13, the plaintiff has delivered the tiller. Therefore, when the Scheme has made it mandatory that the delivery of the tiller would be only upon the delivery instructions given by the Assistant Director of Agriculture, the delay by the defendant in collecting the possession of the vehicle even though the payment by him was made on 18.2.2005 is for the reason analysed above and is properly explained and documented. This aspect, both the Courts below have not properly appreciated and merely going by the difference in the two dates of making the payment and delivery, have jumped to a conclusion that the contention of the plaintiff as reliable.
22. Admittedly, the possession of the Power Tiller sold to the defendant is in the custody of the plaintiff. Even though the plaintiff has not disclosed the same or admitted the same at the first instance in his legal notice RSA.No.677/2012 28 at Ex.P-14, however, after he come to know the defendant had approached the Consumer Forum in that regard and was relegated to a Civil Court, the plaintiff by sending one more reply letter as per Ex.P-16, has acknowledged the custody of possession of the said Power Tiller with him. The said possession of Power Tiller cannot be considered as a lien exercised by him against the goods, for the reason that, the above analysis of the evidence led in the case go to show that the defendant owes no money, much less, the sale consideration of the Power Tiller to the plaintiff. As such the alleged contention of the plaintiff that the defendant owes him a sum of `90,000/- as sale consideration of the Power Tiller, is bereft of any merit and his alleged withholding of the custody of the tiller engine is also for no valid reasons. Thus, it has to be held that the Courts below were not justified in granting a decree for `90,000/- along with interest thereupon in favour of the RSA.No.677/2012 29 plaintiff, directing the defendant to make good the said amount and both the Courts below have committed an error in appreciating the documents at Exs.D-1 to D-3, which had led it to directing the defendant to pay the suit claim amount to the plaintiff.
Accordingly, I answer substantial question of law holding that the Courts below were not justified in granting a decree for `90,000/- with interest, in favour of the plaintiff and that the Courts below have committed an error in appreciating the documents at Exs.D-1 to D-3 and by directing the defendant to pay a sum of `90,000/- with interest. With this I proceed to pass the following order :
ORDER The Appeal is allowed. The judgment and decree dated 6.1.2012, passed by the Fast Track Court-III, Shivamogga, in R.A.No.53/2011, is set aside. The suit RSA.No.677/2012 30 of the plaintiff in O.S.No.319/2006, filed before the Prl.Civil Judge (Sr.Dn.) & C.J.M., at Shivamogga, is dismissed. In the circumstances of the case, there is no order as to costs.
Draw modified decree accordingly. The Court places on record the assistance rendered by the Amicus Curiae with his sound preparation and presentation of the case before the Court. Further, he is not willing to accept any honorarium for his services also.
The Registry is directed to furnish a free copy of this judgment to the learned Amicus Curiae.
Sd/-
JUDGE bk/-