RADHAKANT R PAI KANE Vs. PRAVIN DATTATRAY DESSAI

JUDGEMENT

(1.) THE unsuccessful plaintiff has preferred this appeal against the Judgment and Order passed by the Civil Judge, Sr. Division, Margao, dismissing his suit and decreeing the counter claim of the respondents defendants.

(2.) I have heard the learned Counsel for both the parties. Perused the record. The appellant plaintiff filed the suit for recovery of the amount of Rs. 1,86,476/along with interest at the rate of 16 % per annum on the said amount from the date of filing of the suit till date of the decree and at the same rate till realisation of the amount. The decree was sought against the defendants No. 1 and 2 jointly and severally. The plaintiff came with a case that he owned a tipper truck of Telco make. It was acquired by the plaintiff after obtaining loan from the Goa Urban Cooperative Bank Ltd. The loan advanced by the said Bank was Rs. 4,08,000/under account No. 032s27100244 in folio No. MS 22/095 with interest at the rate of 16 % per annum with quarterly rests. The said loan was advanced to the plaintiff on 9. 3. 1994 and all the dues including the interest were to be paid by the plaintiff to the Bank by end of March, 1999. Sometime, in the last week of May, 1995, or may be in the first week of June, 1995 the defendant No. 1 approached the plaintiff with a proposal to purchase the said truck. The plaintiff told the defendant No. 1 that the price to be paid for sale of the said vehicle should be a minimum of Rs. 4,80,716/, out of which a sum of Rs. 3,39,061/had to be paid in the account of the plaintiff in the Goa Urban Cooperative Bank Ltd. , Margao Branch with whom the said vehicle was hypothecated on account of the term loan obtained by the plaintiff for acquiring the said vehicle. The plaintiff also informed the defendant No. 1 that the suit vehicle and the ownership of the suit vehicle would not be transferred unless all the dues under the said loan account with the said Bank were paid. Further, the defendant No. 1 also informed that as on 12. 5. 1995, a sum of Rs. 3,39,061/was due and payable to the said Bank by the plaintiff under the said loan account and further from 12. 5. 1995 onwards further interest was also due. It was also informed to the defendant that as per the terms of loan with the said Bank, the plaintiff had to pay a fixed instalment every month, as also timely fulfill the other terms of loan including the rate of interest, the terms of payment of interest etc. The defendant no. 1 expressed his inability to pay the entire price at one time but, instead the defendant No. 1 offered that the loan against the said vehicle then standing in the name of the plaintiff be continued and further suggested that he would be given time to pay the price of Rs. 4,80,716/in 47 equal monthly instalments of Rs. 10,228/and that he would also timely pay to the plaintiff the interest charged by the plaintiff's Bankers against the said term loan account, additionally. The defendant also offered to independently pay the premia of insurance of suit vehicle and taxes and other dues payable to the transport authorities and other authorities against the said vehicle. The defendant No. 1 also insisted the immediate delivery and possession of the said vehicle and the ownership of the vehicle was agreed to be transferred in the name of the defendant No. 1, only after clearance of the entire dues payable to the plaintiff as per his offer. Therefore, as per the agreement between the parties, the defendant was required to pay to the plaintiff price of the said vehicle in the following terms:

(3.) THE learned trial Judge, on the basis of the pleadings and evidence on record, proceeded to hold that the plaintiff had failed to prove that he was entitled to recover from the defendants jointly and severally the sum of Rs. 1,86,476/with interest at the rate of 16 % per annum as prayed for. It was further held that the defendants had proved that he was entitled for the mandatory injunction against the plaintiff to sign the necessary documents to transfer the vehicle in his name and to that extent, the counterclaim came to be decreed. Hence, the present appeal. At the outset, it may be noted that it is an admitted as well as evident position between the parties that the suit agreement dated 7. 6. 95 came to be executed between them. It is also admitted by the defendants that the contents of clauses 3 and 5 were part and parcel of the agreement between the parties. This aspect is also admitted by the defendants in their 8 pleadings i. e. the written statement at Exhibit10. In fact, a perusal of the written statement of the defendants respondents shows that they have admitted the contents of paras 13, 15, 16 and 17 of the plaint and in para 25 of their written statement they have further categorically made statement that they did agree by virtue of the said agreement to pay the plaintiff interest charged by the GUCB Ltd. , in addition to the instalments as mentioned in clause 3 of the agreement (emphasis supplied), however, they have tried to explain that the intention behind inclusion of clause 5 in the agreement was to the effect that if at all the Bank increases the interest rate then the burden was to be borne by the defendant No. 1 and not by the plaintiff. If the pleadings are to be relied upon, it is the defendants' case that it was never intended by the parties that defendant No. 1 was to pay the bank interest, firstly as per intalments mentioned in clause 3 of the agreement and again to pay it as per the contents of clause 5 of the agreement. Now, it is significant to note that the defendant No. 1 who was cross examined has given total goby to his version of the defence in the written statement and has tried to make out a totally different case in his defence. Though he categorically admitted in the course of cross examination that he had signed the said agreement, he had stated he did not read it and has not read the said agreement even till the date when his cross examination was held. He has further stated that after he got acquainted with the contents of the said agreement, he found that the agreement is not as per the terms agreed between him and the plaintiff. According to him, although the agreement did refer to the time on which each of the 47 instalments were to be paid by him, this was not informed to him by anybody. He has also stated that though it was the condition of the agreement that he was to pay interest payable to the Bank on the loan that was taken by the plaintiff against the said truck, it was never agreed between him and the plaintiff in such a manner.