LAKSHMANA PRASADA AND SONS Vs. A ACHUTHAN NAIR

JUDGEMENT

(1.) The defendants are the appellants in this appeal. They have preferred this appeal against the judgment and decree of the learned Additional City Civil Judge decreeing the suit brought by the respondent for recovery of a sum of Rs. 1555 alleged to have been collected illegally from the respondent.

(2.) The defendants are dealers of "Hindustan-10" motor vehicles and on the 22nd January 1948, the appellants sold one "Hindustan-10" car to the respondent for the sum of Rs. 9350 which they believed and represented to be the controlled price for the said vehicle exclusive of taxes and other charges. The respondent also paid the price in the belief that the price represented by the appellants was the controlled price, but subsequently the respondent learnt that the price fixed by the Government was only Rs. 8195 for the said "Hindustan-10" motor vehicle and that the appellants had collected in excesy a sum of Rs. 1155. After this knowledge, the respondent called upon the appellants by notices to refund the excess collected by the appellants over and above the controlled price fixed by the Government. The appellants declined to refund the said excess denying that they collected any excess over the controlled price and stating that they collected only the price approved by the Provincial Motor Transport Controller, that there was no misrepresentation by the appellants in the matter of the price and that even if there was any such misrepresentation, the respondent not having rescinded the contract, he was not entitled to recover the excess now claimed, either by way of damages or otherwise and that interest was also not payable. The learned Additional City Civil Judge after framing the issues referred to in his judgment, accepted the case of the respondent and decreed the suit.

(3.) The learned counsel appearing for the appellants now contends that there was no evidence adduced to show that the price of the vehicle in question was only Rs. 8195 on the date when the vehicle was sold and that in so far as the appellants acted in pursuance of circular No. 61 contained in Ex. A. 4 (a), which was approved by the Provincial Motor Transport Controller, they were justified in retaining the entire sum paid by the respondent towards the price of the vehicle. On this point, two Gazette Notifications have been produced by the respondent's counsel. They are dated 6th June 1947 published on the 17th June 1047 and 17th April 1948 published on the 27th April 1.948. A reading of these two notifications makes it clear that the price fixed by the Provincial Government for a vehicle of the kind in question was only Rs. 8195 & not Rs. 9350 paid for by the respondent. ' From a reading of Clauses 4 and 5 of the Madras Civil Motor Cars Control Order, 1947, it is also evident that the power to fix the price for motor vehicles vests only with the Provincial Government and not with the Provincial Motor Transport Controller. Such a price having been fixed by the notifications referred to above, the first notification fixing the price at Rs. 8195 and the second notification fixing the price at Rs. 7700 and the second notification superseding the previous notification and there being no other notifications in between the two notifications referred to above, it is fairly clear that the price for which the motor vehicle in question should have been sold in December 1947 was only Rs. 8195 and not anything in excess thereof. Therefore circular No. 61 referred to in Ex. A. 4 (a) relied upon by the appellants was of no avail a_s it could not be considered to be an authorised fixation of the price for the vehicle in question. Nothing has been produced to show that the Provincial Government had delegated the power to the Provincial Motor Transport Controller to fix the price at the figure given in the circular and approved cf by him. In these circumstances, it has to be held that the authorised price for which the vehicle could have been sold was only Rs. 8195 so that when the respondent paid a sum of Rs. 9350 the difference collected by the appellants is in excess of the controlled price. There is therefore no substance in the contention on behalf of the appellants that they had sold the vehicle for the proper price.