RAJU Vs. AHDHAVAN BANKERS REPRESENTED BY MANAGER

JUDGEMENT

(1.) The appeal coming on for admission, is considered for final disposal having regard to the facts and circumstances. The appeal is therefore admitted. Heard the learned counsel for the appellant and Shri M.S. Rajendra Prasad, the learned Senior Advocate appearing for the counsel for the respondents.

(2.) The present appeal is against a judgment under Order VII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC for brevity) returning the plaint to be presented before the proper court having jurisdiction. The learned counsel for the appellant however would contend that though it is innocuously worded as the plaint having been returned to be presented before the court having jurisdiction, the entire gamut of issues have been addressed by the Court below and therefore, it cannot be construed as merely a return of the plaint but would be a rejection of the plaint and therefore, an appeal would lie under Order XLI Rule 1 of the CPC.

(3.) The facts are as follows. The plaintiff is said to have purchased a bus which was being plied as a tourist vehicle under a permit, bearing registration No. KA-01 AD 6066. The plaintiff had also availed of a loan from the defendant in a sum of Rs. 5,00,000/- by creating a hypothecation in respect of the vehicle, agreeing to pay a monthly installment of Rs. 32,000/-towards repayment of the loan. It was admitted by the plaintiff that for good reason, he was unable to pay instalments for the months of August and September 2009. in a total sum of Rs. 64,000/-. On the other hand, he had repaid a sum of Rs. 2,91,682/- as on the date of the suit, namely 20.10.2009. It was the case of the plaintiff that he had explained to the defendant of his financial difficulties and had requested extension of time to pay the instalments for the months of August and September 2009. Though the defendant had agreed to grant such time, the defendant had unilaterally proceeded to forcibly take custody of the bus when it was parked on the Tank Bund Road in Bangalore without prior notice to the plaintiff. The plaintiff immediately, on learning the said act on the part of the defendant, approached the defendant and requested that there be a reconsideration of its act and to return the vehicle. The defendant refused to release the vehicle, even after receiving the amounts due for the months of August to October 2009. On the other hand, the defendant demanded repayment of the entire loan amount outstanding, in order to release the vehicle. It is in this background that the appellant was before the Trial Court seeking the relief of mandatory injunction directing the defendant to release the said vehicle after receiving the equated monthly installments for the period from August to October 2009 and for a permanent injunction restraining the defendant from alienating the said vehicle. The defendant on receipt of summons in the suit, had entered appearance and had contended that the agreement between the parties conferred jurisdiction on the Court at Gudiyatham in Vellore District, Tamil Nadu and therefore, the present suit was not maintainable as being without jurisdiction. Secondly, it was contended that the defendant had availed a loan by executing a 'Hire Purchase Agreement' and had created a charge over the vehicle in question and in terms of the agreement, the defendant was the owner of the said vehicle during the term of the Hire Purchase Agreement. The plaintiff having admittedly defaulted in payment of the instalments in spite of remainders, the defendant was well within its right to act in terms of the agreement. This aspect of the matter had been suppressed by the plaintiff. Thereafter, the court below has proceeded to frame issues and the plaintiff had tendered evidence by way of affidavit and was examined as PW-1 and documents in support of his case were marked as Exhibits P1 to P7. The defendant in turn had also tendered evidence and marked documents Exhibits D1 to D3. The court below, on consideration of the pleadings, had framed the following issues: