SHYAMSUNDER BUBNA Vs. MANINDRA NATH GHOSE

JUDGEMENT

(1.) The plaintiff firm allege that they are dealers in motor vehicles and that they also let out motor vehicles on hire. They say that by an agreement, dated December 10, 1063, amongst the plaintiff firm as the ''owner", the defendant No. 1 as the "hirer" and the defendant No. 2 as the 'guarantor", they agreed to let and the defendant No. 1 agreed to take on hire, a Fiat 1100 motor car (being the car in suit), inter alia, on condition (i) the hirer defendant No. 1 would pay to the plaintiff a sum of Rs. 3,565 as an initial payment by way of hire, which would become the absolute properly of the plaintiff and would further pay to the plaintiff 21 consecutive instalments of Rs. 589, on the 19th day of each succeeding month, the first instalment being payable on January 19, 1964; in default or punctual payment there was a stipulation for payment of interest on sums overdue at the rate of 1 per cent per mensem, (ii) the hirer defendant No. 1 would be at liberty at any time to terminate the hiring, on return of the motor car, (iii) the hirer defendant No. 1 would hold the car as a bailee and shall not have any proprietary right or purchaser's interest therein until he has paid the whole amount due under the agreement and also exercised his option to purchase, (iv) the plaintiff owner would be at liberty to terminate the contract of hiring and recover possession of the motor car. (a) if any monthly hire or part thereof he left unpaid after a specified period, or (b) if the hirer defendant No. 1 commit any bread) of the terms of the agreement, (v) any such termination would be without prejudice to the claims the plaintiff owner might have under the agreement. The defendant No. 2, it is said, guaranteed due performance of the terms of the agreement by the hirer defendant No. 1. and agreed to pay an sums due under the agreement, if the hirer defendant No. 1 Failed, to pay. The plaintiff firm say further that on payment of Rs. 3,565, at the time of the execution of the agreement, the possession of the Fiat car in suit was made over to defendant No. 1 on behalf of the plaintiff firm. They say also that defendant No. 1 paid seven monthly instalment as agreed upon, and also part of the 8th instalment but failed and neglected to pay the instalments thereafter. Thereupon, on March 23, 1965. the plaintiff determined the agreement but could not recover possession of the car, in spite of demands. In these circumstances, they filed this suit claiming that upon determination of the agreement, they became entitled to Rs. 4,944, being the amount of arrears of instalments together with interest and expenses, return of the vehicle or the market price thereof and damages or mesne profits for wrongful possession and use of the vehicle by defendant No. 1, after the termination of the agreement.

(2.) The defendant No. 1 alone filed a Written Statement and contested the suit. He alleged, that, in September 1963, the Government of West Bengal made a special allocation of a Fiat car, in replacement of an old taxi cab owned by him, and directed him to acquire the car from Auto Distributors Ltd., within 60 days. Unable to procure the price of the car, except to the extent of Rs. 5000 by sale of his old taxi cab. within the time originally allowed or within the extended time thereafter allowed, he, approached the plaintiff firm, money lenders and financiers, for a loan of the balance required. The plaintiff firm agreed and advanced the money on the following terms, namely, (i) out of Rs. 5,000 which the defendant had in hand, Rs. 1,000 would be appropriated by the plaintiff as financiers commission and Rs. 1,000 utilised in part payment of the car to be purchased, (ii) the balance of the price as well as the charges for insurance of the cur for two years would be advanced by the plaintiff and the said sum would he repayable with interest in 24 monthly instalments of Rs. 359 cash. The plaintiff Firm were never the owners of the car to be purchased and were not in a position to let or hire out the same. Nevertheless, it was alleged, they made defendant No. 1 sign the hire purchase agreement hereinbefore mentioned and execute a promissory note for Rs. 13,000, before they made the advance. The advance did not wholly cover the price and Auto Distributors Ltd., the dealers, realised from defendant No. 1 further sum of Rs. 35 before they delivered the car to him. Thereafter, between February 10, 1964 and February 12, 1965, defendant No. 1 paid to the plaintiff firm Rs. 5,743 towards the money advanced but the plaintiff firm never granted any receipts therefor. Also, the plaintiff firm refused to make over the insurance certificate to defendant No. 1, until the insurance charges were separately paid to them, although they were liable, under the agreement, to meet the insurance charges for two years. On receipt of the notice, dated March 23, 1965, determining the hire purchase agreement, the defendant No. 1. it is alleged, saw the plaintiff, verbally disputed the claim, asked for accounts from the commencement of the transactions and demanded that the insurance certificate be made over to him. On that day, it is further alleged, the defendant No. 1 paid to the plaintiff firm a further sum of Rs. 500 and it was agreed that the plaintiff would be entitled to no further payment until accounts were rendered to defendant No. 1, In violation of the last agreement, the plaintiff firm filed this suit, on March 29, 1985. and obtained forcible possession of the vehicle on April 30, 1865. The defendant No. 1 denied the claim made by the plaintiff firm and in particular denied their alleged interest in the vehicle or their right to have or retake possession thereof. The defendant No. 1 disputed the validity or the legality of the alleged hire purchase agreement, alternatively the termination thereof. In paragraph 2(j) of the written statement, he no doubt admitted his liability to pay, by instalments, whatever was justly due from him but in paragraph 6 took up the stand that on accounts being rendered nothing would be found due from him.

(3.) The car which was seized from the defendant No. 1 was released to him by this Court against security furnished. On the pleadings the following issues were raised: