Bangalore District Court
Sri.M.Ramachandrappa S/O vs Mahindra Construction on 26 February, 2020
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH.No.19)
Dated: This the 26th day of February 2020.
Present
Smt.M.LATHA KUMARI, M.A. LL.M.,
VII Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.NO.8673/2014
Plaintiff: Sri.M.Ramachandrappa S/o.
Late Muniswamappa, aged
about 64 years, r/at.No.32/A,
6th Main road, Kamakshipalya,
Meenakshinagar, Bengaluru-
79.
(By Sri. D.R.Ravishankar,
Adv.)
-Vs-
Defendants: 1. Mahindra construction
Equipment, Mahindra &
Mahindra Ltd., Gateway
Building, Apollo Bunder,
Mumbai-400 0001.
Represented by its Managing
Director.
2. Sri Lakshmi Motors Service
(P) Ltd., Exclusive Dealers and
Service Centre for Mahindra
Construction Equipment,
Office at: No.56, B.M.road,
Sheshagirihalli, Bidadi Hobli,
Ramanagar Taluk & District,
Represented by its Proprietor.
2 O.S.No.8673/2014
3. HDFC Finance Ltd., CMH
Road, Bengaluru,
Represented by its Manager.
4. Mahindra & Mahindra
Finance Service Limited
Office:32, Praksh Nagar, 80
feet road, Rajajinagar 3rd Stage
above ICICI Bank, Bengaluru
-10, Represented by its Port
Folio Manager, Santhosh
Kumar B.P.
5. Sri A Srinivasan, No.121/3,
Flat-4, Baba Foundation,
N.T.R. Street, Rangaraja-
puram, Kodambbakkam,
Chennai-600 024.
Arbitrator.
[D1- M/s.P.P, D3-By Sri V.A.P,
Adv. D4-By Sri S.H.Prashanth,
Adv. & D5-Ex-Parte].
Date of institution of suit 12.11.2014
Nature of the suit Declaration & Injunction
Date of commencement
of recording of evidence -
Date on which Judgment 26.02.2020
was pronounced
Total duration Days Months Years
14 03 05
3 O.S.No.8673/2014
J UDGMENT
This is plaintiff's suit to declare the seize of JCP
Mahendra Earth Master [Backhoe loader] vehicle by
defendants No.1, 2 and 4 is illegal, arbitrary and contrary
to the laws laid down under the principles of natural
justice and also pray for consequential relief of mandatory
injunction against defendants No.1, 2 and 4 from
auctioning the said vehicle bearing No.KA-41-P-2214 in
favour of other persons.
2. The brief facts of the plaintiff's case is that,
with an intention to earn out his liveli-hood by buying JCP,
which he wanted to use by himself for various job works
and wanted to earn out his liveli-hood, plaintiff who was
also undertaking smaller earth work contract decided to
purchase the JCP [Backhoe loader] and made enquiries
with the 1st defendant, who informed plaintiff that, the
vehicle in question was the best in the market and
requested plaintiff to purchase the vehicle. When plaintiff
was making further enquiries, thinking that the said
vehicle is new in the market, in the month of October
4 O.S.No.8673/2014
2011 the machinery itself was brought near the house of
the plaintiff and 1st defendant had sought to give a
demonstration. It is plaintiff's further case that, due to
consistent persistence of 1st defendant's sales
representative operating through their dealer, the 2 nd
defendant, plaintiff ultimately agreed to purchase the
vehicle and placed an order during last week of October
2011. It is plaintiff's further case that, defendants No.1
and 2 represented that, there was a finance scheme and
what is required was to make a down payment of
Rs.5,00,000/- and remaining cost of the equipment being
Rs.14,98,566/- was to be financed by 3 rd defendant and
his signatures were obtained in the document for
arranging the finance and vehicle was delivered on
2.11.2011 to the plaintiff and registration was effected on
21.12.2004 and the cost of registration of about
Rs.1,60,000/- was also paid by the plaintiff over and
above the invoices amount. When plaintiff started to
using the said vehicle, he found there was hardness in
the breaking system, accordingly, given for service.
Further, on 17.12.2011 when vehicle was being driven on
5 O.S.No.8673/2014
a road, the breaking system did not work as a result, the
vehicle has crashed with series of vehicle leading to the
plaintiff paying huge damages to those owners of the
other vehicles. Since plaintiff did not intend any police
complications, no police complaint was given by him,
however, on the complaint of one of the affected parties,
Vijaya Nagar Police registered Crime No.155/2011, which
in turn lead to filing of Motor Vehicle Claims. In
MVC.No.1417/2012, in respect of other six vehicles when
plaintiff brought to the notice of 2nd defendant, he asked
plaintiff to settle all matters and not to get into police
complications. He also informed plaintiff that, after get rid
of those problems, plaintiff can bring the vehicle to the
service center and he will rectify the same. Accordingly,
plaintiff repeatedly given the vehicle to the service center
due to various manufacturing defects. It is plaintiff's
further case that, repeatedly he has given his vehicle for
service with defendants No.1 and 2, who in turn assured
plaintiff to get a new vehicle provided the plaintiff pays
substantial amounts in a manner that Rs.9,00,000/-
would be refinanced for the new vehicle. It is plaintiff's
6 O.S.No.8673/2014
further case that, he had no intention to transact with 4 th
defendant nor he met the 4 th defendant and there was no
agreement between plaintiff and 4th defendant for the
purpose of financing. Under such circumstances, 5 th
defendant issuing notice for representing himself as an
Arbitrator would never arise. He signed all the loan
documents in favour of 3rd defendant-Bank. Defendants
No.1, 2 and 3 are acting arbitrary in the appointment of
Arbitrator, defendant No.5. The appointment of defendant
No.5 is contrary to the provisions contemplated under
Arbitration and Conciliation Act, if the defendant No.5 is
allowed to pass the orders against the plaintiff, it will
cause serious damage to him. It is just and necessary to
restrain them from taking adverse steps plaintiff has
suffered loss to the tune of almost Rs.12,00,000/- on
account of various payments, which he has made and
also the interest which he has paid for several months
without the vehicle itself being put to use. Defendants
No.1 2, and 4 caused mental agony and harassment.
Accordingly, plaintiff has filed complaint before State
Consumer Disputes Redressal Forum in Complaint
7 O.S.No.8673/2014
No.217/2014 claiming for either replacement of a new
vehicle and also for damages of Rs.12,00,000/- and
same is pending consideration. By having sold the
defective vehicle, same was illegally seized by defendant
No.4 on 14.12.2013. At Para-22 of the plaint, plaintiff has
mentioned that, the cause of action arose to file the
above suit is on 14.12.2013 when the vehicle was illegally
seized by the 4th defendant and also on 30.1.2014 when
legal notice was issued to te defendants No.1 and 2, on
26.8.2014 and 17.10.2014 when plaintiff has received the
letter from defendant No.5 for conducting arbitration
proceedings without the consent of the plaintiff. Hence,
plaintiff having no other alternative and efficacious
remedy available in law, is approaching this Court with
the above suit for the reliefs mentioned supra.
3. On issuance of suit summons, defendant
No.1, 3 and 4 appeared through their Counsel.
Defendant No.3 filed written statement stating that,
plaintiff is neither a borrower nor his customer and there
is no cause of action to file this suit against him. The
8 O.S.No.8673/2014
plaintiff filed memo on 13.11.2014 stating that, he is not
claiming any relief against 3rd defendant i.e., HDFC Bank.
1St defendant filed written statement stating that, plaintiff
having already filed case before Consumer Forum has
unnecessarily filed this suit just to avoid the arbitration
proceedings stated to be pending and hence pray for
dismissal of this suit with exemplary costs.
4. Based on these pleadings, this Court framed
following issues:
1. Whether the plaintiff proves that he
has purchased JCP Mahindra Earth
Master (Backhoe Loader) vehicle from
defendant No.1?
2. Whether plaintiff proves that
defendant Nos.1, 2 and 4 have illegally
seized the JCP vehicle as alleged?
3. Whether plaintiff proves that the
defendant No.1, 2 and 4 are trying to
auction the JCP vehicle illegally?
4. Whether plaintiff proves that he is
entitled for the relief of declaration as
sought?
5. Whether plaintiff proves that he is
entitled for the relief of mandatory
injunction against defendants No.1, 2
and 4 as sought?
6. What order or decree?
9 O.S.No.8673/2014
5. When matter was posted for plaintiff's
evidence, defendant No.4 filed memo seeking to dismiss
the suit as infructuous stating that, he has already sold
the vehicle. However, later said Memo was dismissed as
not pressed as per order dt:1.2.2020. On 3.2.2020, 4 th
defendant filed Memo with copies of documents and
matter adjourned to 24.2.2020. On that day, learned
Counsel for plaintiff filed two Memos. One Memo for
passing of detail order on the Memo filed by 4 th defendant
on 28.1.2020. Said Memo came to be dismissed,
considering that, same has not been pressed by
defendant No.4. On the same day, learned Counsel for
plaintiff filed another Memo seeking to consider the case
on merits stating that, issues are framed and case stands
posted for plaintiff's evidence. Such being the situation,
question of hearing the parties on maintainability of the
suit does not arise. It is further mentioned in the said
Memo that, even otherwise, he is only challenging the
method adopted for recovery of the vehicle from the 4 th
defendant and prays to permit the plaintiff to lead
evidence on the above said issues.
10 O.S.No.8673/2014
6. This Court heard respective Counsels on
office objection regarding maintainability of suit. As per
the provisions of Order 15 Rule 3 CPC., if issues have
been framed by the Court, and if the Court is satisfied
that, no further argument or evidence is required upon
such issues and no injustice will result from proceeding
with the suit forthwith, the Court may proceed to
determine the same and may pronounce judgment. As
per this provision, recording of evidence is not mandatory.
Considering the same, and also the contention of both
parties and the documents relied upon by them, which
are sufficient for the decision of this suit, this Court
considered the above issues on the basis of the same.
7. I have carefully scrutinized the entire records
before me, so also citations produced and relied upon by
both parties.
8. My findings on the above Issues are:
Issue No.1 : In the affirmative;
Issue No.2 : In the negative;
Issue No.3 : In the negative;
11 O.S.No.8673/2014
Issue No.4 : In the negative;
Issue No.5 : In the negative;
Issue No.6 : As per final order,
for the following:
REASONS
9. ISSUE NO.1 : It is the case of plaintiff that, as
per Para-5 of his plaint that, the vehicle in question was
delivered to him on 2.11.2011 against the total invoice
amount of Rs.19,98,566/- together with Vat charge at
5%. 1st defendant, who filed his written statement
admitting in Para-5 of his written statement that, the
plaintiff purchased the vehicle manufactured by
1st defendant from his dealer, 2nd defendant herein and
vehicle was delivered on 2.11.2011. Considering these
averments and also the documents produced by
respective parties in this regard, I have answered this
issue in the affirmative.
10. ISSUE NO.2: Through out the plaint, plaintiff
has mentioned about various dates on which he has
given his vehicle for service and also asserted that,
a defective vehicle has been given to the plaintiff and
12 O.S.No.8673/2014
thereby, he was forced to give the vehicle for service
with defendants No.1. 2 and 4 with repeated complaints.
At Para-20 of his plaint, plaintiff states that, he has filed
Consumer Complaint No.217/2014 before State
Consumer Disputes Redressal Forum claiming for either
replacement of a new vehicle or its value equal to that of
Rs.19,98,566/- together with damages of Rs.12,00,000/-
from 1st defendant and same is pending consideration.
Though plaintiff's plaint consist of as many as 22
paragraphs, no where in these paragraphs plaintiff has
averred about alleged illegal seizure of the JCP Vehicle.
At Paragraph No.22(i) plaintiff only mentioned that, the
cause of action arose to file the above suit on
14.12.2013 when the vehicle was illegally seized by the
4th defendant. Except this stray statement, plaintiff has
not mentioned about the alleged mode of illegal seizure
by 4th defendant. Whether plaintiff has produced any
supportive documents in this regard is a point to be
considered at this stage. Along with the plaint, plaintiff
has produced as many as 16 documents. Amongst
these documents, document No.8 which is described as
13 O.S.No.8673/2014
request letter dt:17.11.2013 and return
acknowledgements mentioned in list of documents
dt:12.11.2014, is a vital document to consider this
alleged illegal seizure of the vehicle claimed by the
plaintiff. This is a letter dt:17.11.2013 addressed by the
plaintiff herein to defendants No.1, 2 and 4 herein. In
this letter the subject is mentioned as "Sale of fault
EMVEQP-Earth Moving Equipment Vehicle". In body of
the letter it is mentioned that, since from the date of
purchase of said vehicle, it was functioning with the
minimum satisfaction and gradually problem persisted
and involved with serious problems. It is also mentioned
that, plaintiff was under the hope that, 1 st and 2nd
defendant would rectify the mistake, but so far they are
not responding to the issues raised by plaintiff and there
is total failure in performance of service of vehicle, which
is provided within the guarantee period from the date of
purchase and defendants have neglected to rectify the
deficiency and thereby, caused deficiency of service to
the plaintiff because of which he suffered mental agony,
monitory loss and have done great injustice intentionally
14 O.S.No.8673/2014
to the plaintiff and thereby, he was unable to pay
monthly E.M.I for past 10 months to the Finance
Company provided for the vehicle purchased, which was
provided from the ends of defendant No.1, 2 and 4 at the
time of purchase and thereby, plaintiff requested to
provide him with new vehicle and compensate for the
loss occurred due to the purchase of the above vehicle
and also to pay balance monthly E.M.I to the Finance
Company. Hence, as per this request letter
dt:17.11.2013, plaintiff himself requested the defendants
No.1, 2 and 4 herein for sale of the vehicle in question.
In this letter, the plaintiff has not at all mentioned about
road accident committed by plaintiff while driving the
said vehicle in question on 17.11.2012 and also Criminal
Case lodged against him by Vijayanagar Police in Crime
No.155/2011. Whereas, plaintiff has mentioned about
said road accident and also criminal complaint came to
be lodged against his driver and also
MVC.No.1417/2012 filed by concerned claimants in his
plaint averments. In the charge sheet produced by
plaintiff, it is mentioned that, said accident taken place
15 O.S.No.8673/2014
due to the rash and negligent driving of driver of the
vehicle in question by name H.P.Hogesh on 17.12.2011
at about 4.15 p.m. This charge sheet produced by the
plaintiff himself establishes that, road accident has been
caused due to the rash and negligent driving of his
driver and not due to any defect in the vehicle. In the
charge sheet there also exist, the statement of victim
Akram Shariff. Even he has stated that, the JCP driver
drove the vehicle in a rash and negligent manner at
high speed and dashed against his Motor-Cycle.
Plaintiff has produced another document, which is a
document pertaining to Arbitration Proceedings
dt:27.2.2014 and another Arbitration Proceedings
dt:12.9.2014. On both these dates of proceedings before
Sole Arbitrator, it is mentioned as, "Respondent absent,
no representation for the Respondent". The respondent
in this arbitration proceedings is none other than the
plaintiff herein. According to plaintiff's letter
dt:17.11.2013 mentioned supra, plaintiff was due of 10
months instalments to defendants' finance. He himself
requested for sale of his vehicle as early as on
16 O.S.No.8673/2014
17.11.2013 itself. Plaintiff has produced another letter
dt:30.1.2014, which is in the form of notice issued by
plaintiff through his Counsel to the defendants No.1, 2
and 4. In this notice plaintiff has mentioned at Para-11
that, one Manju had called through his Mobile
No.9663492279 to plaintiff's vehicle operator Yogesh
and asked for hiring the vehicle in question for four days
and assigned the work at Hoysala Circle near Kengaeri
Upanagara limits. Accordingly, plaintiff has sent his
vehicle operator along with the vehicle to the said
location. When plaintiff's operator reached the said spot,
he was physically man-handled and assaulted by 8
person who had come to the spot in Tatasumo vehicle
and informed his vehicle operator that, they are the
recovery agents sent by the Finance Company for
seizing the vehicle and the taken the vehicle and the
operator to an unknown place and assaulted him when
he had protested and took the vehicle forcibly. Whereas,
except the self-statement of plaintiff, he has not
produced any document for having man-handled his
operator. Further, these averments are not at all
17 O.S.No.8673/2014
mentioned in the plaint. In the absence of plaint
averments in this regard plaintiff's contention appears,
vague and baseless. However, as on 17.11.2013
plaintiff was due of 10 months instalments towards
vehicle loan raised by him. It is also mentioned in Para-
15 of his notice that, on 1.1.2014 a letter has been
addressed to plaintiff by 4th defendant stating that,
plaintiff himself has surrendered the vehicle to him for
being default in paying periodical instalments. Whereas,
plaintiff has not produced said letter dt:1.1.2014
addressed to him by 4th defendant. However, the
request letter dt:17.11.2013 issued by plaintiff seeking
for sale of the vehicle in question and sought for
replacement with the new vehicle along with damages
probabalizes that, plaintiff has returned his vehicles to
defendants No.1, 2 and 4 herein for needful action.
However, plaintiff neither produced said letter
dt:1.1.2014 issued by 4th defendant herein nor averred
about the same in Para-22 of his plaint. All these
circumstances establishes that, plaintiff has not
approached this Court with clean hand. Further, inspite
18 O.S.No.8673/2014
of service of notice in the arbitration proceedings to the
plaintiff's address mentioned in the plaint cause title,
plaintiff has not at all represented the said arbitration
proceedings. Inspite of the same in Para-22 of his
plaint, plaintiff asserts that, defendants No.1 to 3 are
acting arbitrarily in the appointment of arbitrator
defendant No.5 against the principles of natural justice
and appointment of arbitrator is contrary to the
provisions contemplated under Arbitration and
Conciliation Act. What is that provision which has not
been complied by defendants No.1. 2 and 4 while
appointing 5th defendant as an arbitrator, is again not
explained by the plaintiff herein. There is absolutely no
averments with regard to mode of seizer of vehicle in
question by 4th defendant. And it is only mentioned that,
vehicle has been seized illegally. When plaintiff
admittedly has not paid 10 instalments and as per
statement of account produced by the plaintiff the post
dated cheques provided by the plaintiff are all bounced
with regard to equated monthly instalments issued by
him, it is probable that, the only course open to the 4 th
19 O.S.No.8673/2014
defendant is, to seize the vehicle, which is already under
hypothecation. This act cannot be considered as illegal.
That apart, plaintiff neither averred about the said illegal
modes committed by 4th defendant or defendants No.1
and 2 in seizing the said vehicle nor produced any
documents in support of the same. Under such
circumstances, except the self-statement of plaintiff that,
his vehicle has been seized illegally, there is absolutely
no piece of paper available to substantiate this
statement of plaintiff. In the absence of cogent material,
this version of plaintiff appears vague and baseless.
Plaintiff has filed this suit stating that, the act of
defendants No.1, 2 and 4 are contrary to the principals
of natural justice. The person who seeks equity must
do equity. As per letter dt: 17.11.2013, plaintiff himself
sought for sale of his vehicle stating that, said vehicle is
a faulty one and now states that, same has been illegally
seized. This version of plaintiff is also contrary to his
own versions available in his letter dt:17.11.2013. All
these circumstances establishes that, plaintiff is making
all these exercise just to evade his liability against
20 O.S.No.8673/2014
defendants No.1, 2, and 4. Accordingly, I have answered
this issue in the negative.
11. ISSUE NO.3: Plaintiff admits that, he was unable
to pay monthly E.M.I for the past 10 months to the Finance
Company, as per his letter dt:17.11.2013. In this letter
plaintiff also sought for sale of the vehicle in question.
Further, plaintiff himself got issued notice dt:30.1.2014
stating that, he had received the letter dt:16.12.2013 from
4th defendant herein with regard to re-possession intimation
stating that, the vehicle is under possession and would
dispose of if the loan amount is not paid immediately. In this
notice plaintiff only asserts that, these defendants have
issued the said letter without making any efforts to rectify
the problems in vehicle which shows the careless attitudes
towards their customer in selling the vehicle which has
inherent manufacturing defect and thereby, called upon the
defendants to provide him with new vehicle along with
damages of Rs.20,00,000/- for deficiency of service.
Whereas, plaintiff not mentioned about issuance of letter
dt:16.12.2013 and also receipt of said letter by plaintiff on
21 O.S.No.8673/2014
28.12.2013 and filed this suit after lapse of almost one year
from the date of said notice. Admittedly, plaintiff has filed
complaint before State Consumer Disputes Redressal
Forum in Complaint No.217/2014 questioning the alleged
deficiency of service by defendants No.1, 2 and 4 and
sought for replacement of new vehicle along with damages
worth value of the vehicle and also another Rs.12,00,000/-.
Inspite of the same, plaintiff sought for mandatory injunction
against defendants No.1, 2 and 4 herein from auctioning the
same in favor of other parties. This relief claimed by the
plaintiff establishes that, it is nothing but a negative relief
sought by plaintiff. Whether such relief can be granted is
required to be considered at this stage. In this regard, it is
necessary to go through the provisions of Section 41(e)(i)
and Section 42 of the Specific Relief Act. As per the
provisions of Section 41(e), "An injunction cannot be
granted to prevent the breach of contract the
performance of which would not be specifically
enforced. Further, as per Section 41(i) of the said Act,
"When the conduct of the plaintiff or his agents has
been such as to dis-entitles him to the assistance of the
22 O.S.No.8673/2014
Court. As per Section 42, "Where a contract comprises
an affirmative agreement to do a certain act, coupled
with a negative agreement, express or imply, not to do
a certain act, such negative agreement can be granted
provided plaintiff has not failed to perform the contract
so far as it is binding on him". In the case on hand,
plaintiff is not disputing that, he has purchased the vehicle
in question by availing the finance from defendants No.1. 2
& 4 herein. He also admits that, he has not paid 10
instalments against said finance obtained by him towards
purchase of vehicle. This version of plaintiff establishes
that, he has failed to perform his part of contract i.e.,
payment of regular EMI to the defendants' concern herein.
In Para-4 of his plaint, plaintiff admits that, against down
payment of Rs.5,00,000/- another Rs.14,98,566/- has been
financed to him and vehicle was delivered to plaintiff on
2.11.2011. Though plaintiff has filed this suit in the year
2014 i.e., on 12.11.2014 plaintiff has produced the copy of
package insurance policy issued during the year 2011 and
not the subsequent insurance policy more particularly
insurance policy for the year 2013-14 in respect of vehicle
23 O.S.No.8673/2014
in question. Plaintiff having claimed replacement of new
vehicle by questioning the deficiency of service of
defendants No.1 to 4 and also damages has estopped from
claiming the relief of mandatory injunction against
defendants. That apart, plaintiff failed to establish that, his
vehicle has been seized illegally and defendants No.1, 2,
and 4 and are trying to auction the same illegally. Plaintiff
admits that, he has not paid the EMI for a period of 10
months and he was called upon to clear the said EMI with
an intimation that, on failure on part of plaintiff will leads to
sale of the vehicle by auction. Plaintiff having committed
breach of contract by not paying the regular instalments has
no locus-standi to stop the auction of the vehicle. That
apart, the plaintiff has not produced any piece of paper to
establish that, his vehicle has been seized illegally and
defendants are making illegal attempts to auction the same.
If vehicle is kept idle expose to nature, it is probable that, it
will become unroadworthy and thereby, unlawful loss to
defendants No.1, 2 and 4, who have financed the plaintiff
for purchasing of the vehicle. Accordingly, I have
answered Issue No.3 in the negative.
24 O.S.No.8673/2014
12. ISSUE NO.4 & 5: These two issues are taken up
together for consideration to avoid repetition of facts and
circumstances of the case.
13. My findings on issues No.1 to 3 establishes that,
plaintiff not at all approached this Court with clean hand and
also not established his contentions against defendants
No.1, 2 and 4. Under such circumstances, plaintiff is not at
all entitled for the equitable relief claimed before this Court.
Further, plaintiff has not even mentioned the provisions
under which he is filing this suit and only asserts that, the
act of defendants is contrary to the provisions of Arbitration
and Conciliation Act and also laws laid down under the
principles of natural justice. Having filed this suit under the
principles of natural justice, plaintiff has not mentioned in
his plaint that, he has not paid the E.M.I from past 10
months as on 17.11.2013 and almost for a period of two
years from the date of this suit. This conduct of plaintiff
establishes that, he has not approached this Court with
clean hand nor established his claim against defendants.
Accordingly, I have answered these two issues also in the
negative.
25 O.S.No.8673/2014
14. ISSUE NO.6: The learned counsel for plaintiff
relied upon citation of Hon'ble Supreme Court reported in
2012(1) Supreme Court Cases, 1 and asserted that,
"Recovery process under hire purchase agreement has to
be carried out in accordance with law and not by use of
force". Whereas, no where in the plaint, plaintiff has
mentioned that, his hirer has used force on him and
recovered the vehicle and only stated that, the cause of
action for the suit arose to file the suit on 14.12.2013 when
the vehicle was illegally seized by defendant No.4. As
I have already stated, what is that mode of illegal method
used by the hirer is not averred in the plaint. Whereas,
plaintiff's own document i.e., request letter dt:17.11.2013
establishes that, he himself admitted due of 10 months
instalments to his hirer and also requested for sale of the
vehicle. There is absolutely no document produced by the
plaintiff to substantiate the alleged illegal seizure. Under
such circumstances, the principles laid down by Hon'ble
Supreme Court in the citation referred supra, is not of any
useful to plaintiff. Further, the plaintiff has already filed
complaint before Consumer Forum and sought for
26 O.S.No.8673/2014
replacement of new vehicle or the value worth of the vehicle
along with the damages to the tune of Rs.12,00,000/-. All
these circumstances and also my findings on Issue No.1 to
5 establishes that, this is nothing but a vexatious suit filed
by plaintiff without performing his part of contract entered
with his hirer. Accordingly, I proceed to pass the following:
ORDER
Suit filed by the plaintiff for declaration and mandatory injunction against defendants No.1, 2 and 4, is dismissed.
Parties to bear their own cost.
Draw decree accordingly.
*** (Dictated to the J.W. on computer, and print out taken by her, revised, corrected, signed and then pronounced by me in open Court today the 26th day of February 2020).
(M. LATHA KUMARI) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
27 O.S.No.8673/2014Judgment pronounced in the open Court (vide separate Judgment) Suit filed by the plaintiff for declaration and mandatory injunction against defendants No.1, 2 and 4, is dismissed.
Parties to bear their own cost.
Draw decree accordingly.
(M.LATHA KUMARI) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.