VISHNU SHANKER MISRA Vs. ROHTAS FINANCIERS

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit filed by him against M/s. Rohtas Financiers and Sri Lal Chand Rastogi, Partner Rohtas Financiers, Hire purchase Financiers of Automobiles, Hazratgani. Lucknow. The prayer in the suit was that a decree for damages for sum of Rs. 46,250/-be passed against the defendants, for breach of contract. In the first intsance an application for forma pauperis was filed. The said application was allowed and registested as Regular Suit No. 85 of 1967. The learned Additional Civil Judge by judgment and decree dated 5-12-1968 dismissed the plaintiff's suit. The appellant then filed an application for leave to appeal in forma pauperism. The prayer was granted by this court and the application for leave to appeal was converted into First Civil Appeal No. 17 of 1971.

(2.) THE case of the plaintiff as disclosed in the plaint is that he had been doing truck business and on 14-1-1963 he entered into an agreement with defendants 1 and 2 to purchase Vehicle No. U. P. L. 4108 on hire purchase system. A sum of Rs. 101/- was paid by the plaintiff to defendants as advance money. It was further stipulated that Rs. 4000/- was to be paid as initial payment and the rest of the amount, namely, Rs 15,000/- would be realised by the defendants from the plaintiff in twenty four equal instalments. THE agreement of hire purchase was to be filled in by the parties simultaneously with the delivery of vehicle and the initial amount of Rs. 4000/- was to be paid by the plaintiff to the defendants. THE plaintiff was also required to furnish guarantors to be approved by the defendants. On 14-1-1983, it is stated by the plaintiff in the plaint that the defendants informed him that the said vehicle needed repairs and recolouring and the said vehicle would be delivered to the plaintiff within a month from that date. When the plaintiff approached the defendants for delivery of vehicle the defendants informed him that the vehicle was not ready for delivery and it shall be delivered just after 'Holi' festival. It is also asserted that an 13-3-1963 when the plaintiff again approached the defendants he 'handed over' the balance of the initial money but the defendants again informed the plaintiff that the vehicle is not ready for delivery. THE same reply was given by the defendants when the plaintiff approached the defendants on 20-3-1963. On 23-3-1963 the plaintiff sent a registered acknowledgement due notice to defendants 1 and 2, requiring them to pay Rs.2000/- as damages upto 23-3-1963 and also a further sum of Rs. 50/-per day with effect from 23-3-63 till the delivery of the truck. THE defendants admit that the said notice was received by both the defendants on 26-3-1963. It has also been stated in the plaint that on 24-8-1965 the plaintiff again sent a notice to the defendants requiring them to pay damages to the tune of Rs. 46,250/-. According to the plaintiff the notice dated 24-8-1965 was received by defendant no. 1 on 25-8-1965 and the plaintiff in order to maintain his family had to purchase another vehicle and due to shortage of funds was able to ply the vehicle only in December, 1963 after he had arranged funds. THE plaintiff's case is that non-delivery of Vehicle No. U.P.L. 4108 put the plaintiff to great loss and he had to take help of his friends for meeting the daily needs. THE plaintiff also states that the purchase of other truck did not yield any profit and be suffered great loss in business. In paragraph 17 of the plaint the plaintiff has claimed Rs. 46,250/- as damages on account of nondelivery of truck U. P. L. No. 4108. In para 19 it has been stated that the defendants had disposed of Truck U. P. L. No. 4108 on profits. According to the plaint cause of action accrued to the plaintiff on 14-1-1963, 25-3-1963 and 25-8-1965. In this way the plaintiff claims a decree for Rs. 46,250/- and since he was unable to pay the court fee, he applied for leave to appeal in forma pauperism. THE plaintiff was permitted to appeal as a pauper.

(3.) IN this appeal we have heard learned counsel for the parties at great length. It was contended by Mr. L. R. Acharya. learned counsel for the appellant that the court below recorded a finding that there was a contract between the patties such as is alleged in the plaint. He contended that the breach of contract was occasioned by the conduct of the defendants and not the plaintiff. He accordingly pressed that the claim for damages should have been decreed by the trial court. On the other hand Mr. R. K. Srivastava, learned counsel for the respondents contended that since there was no completed contract the terms of which had to be reduced in the form of hire purchase agreement the plaintiff is not entitled to any damages. The learned counsel elaborates his submission by saying that the agreement referred to in the plaint was not enforceable as the terms thereof were condition precedent before the transaction could go through. Since there was no completed contract between the parties the claim for damages is not maintainable.