SATYANARAYAN KAMAL KUMAR Vs. BIRENDRA PR SINGH

JUDGEMENT

(1.) The plaintiffs suit is on a hire-purchase agreement dated 24-7-67 in respect of a 1962 model Willys Jeep bearing registration No. WBB 9796 against the defendant No. 1 as the hirer and against the defendant No. 2 as the guarantor, for recovery of arrears of hire, interest and damages. The plaintiff alleged that the defendants, in breach of the terms of the said agreement had removed the vehicle to Tarwa, in the District of Varanashi and failed to pay the agreed hires. The agreement was terminated by the plaintiff by notices dated 4-12-67 and 19-12-67, In this suit, the plaintiff also claimed possession of the said vehicle or in lien the present market value of Rs. 6498/-.

(2.) Only the defendant No. 2 contested the suit. In the written statement he alleged that prior to 24-7-67, there was an oral agreement between the plaintiff and the defendant No. 1 for purchase of this vehicle and the plaintiff had given loan to the defendant No. 1 in that connection. These alleged oral terms were set out in the written statement. The defendant No. 2 was not a party to that agreement. The defendant No. 2, however, admitted having signed the written agreement dated 24-7-67 subsequently as a guarantor but on certain oral terms mentioned in paragraph 3 (d) of the written statement. According to him the real transaction between the plaintiff and the defendant No. 1 was a loan transaction within the meaning of Bengal Money-Lenders Act. The plaintiff is carrying on money lending business without holding any Money-Lending Licence. Hence the hire-purchase agreement in suit is null and void. He further alleged that in breach of the oral terms of guarantee, the plaintiff allowed the defendant No. 1 to remove the vehicle from Calcutta without the guarantor's written permission and as such he was discharged from all liabilities under the guarantee agreement. The last defence was that the real transaction being loan transaction below the pecuniary jurisdiction of this Court, the Court has no jurisdiction to try the suit. It has been alleged that plaintiff is not a registered firm and the notice of termination was invalid and insufficient. Following issues were raised :--ISSUES : 1. Is the plaintiff a registered firm as alleged in the plaint ? 2. Did the plaintiff carry on business as money-lender and financier as alleged in paragraph 2 of the written statement of the defendant No. 2 ? 3. Did the defendant fail and neglect to pay the instalments in tenns of the agreement dated 24th July, 1967 in spite of demands as alleged in paragraph 6 of the plaint ? 4. (a) Was there any oral agreement between the plaintiff and the defendant No. 1 as alleged in paragraph 3 (d) (i), (ii) and (iii) of the written statement ? (b) If so, does it amount to a condition precedent as alleged in paragraph 3 (d) (iv) of the written statement ? 5. Did the defendants remove the vehicle from Calcutta without the knowledge and consent of the plaintiff as alleged in paragraph 7 of the plaint ? 6. Was the notice of termination invalid or insufficient as alleged in paragraph 7 of the written statement ? 7. Has this Hon'ble Court jurisdiction to entertain, try and determine this suit as alleged in paragraph 11 of the written statement? 8.To what relief, if any, is the plaintiff entitled ? Issue No. 7

(3.) It has been submitted on behalf of the defendant, that this Court has no jurisdiction to entertain the present suit because the transaction in suit was not a commercial transaction relating to buying or selling of goods as alleged in the suit. The transaction in suit was a loan of Rs. 5500/- below the pecuniary jurisdiction of this Court and as such the suit should be dismissed on that ground. On behalf of the plaintiff it has been submitted that the suit is on a hire-purchase agreement and the claim in the suit is for Rs. 10671/- consisting of arrears of hire of Rs. 1239/-, market value of the vehicle of Rs. 6498/- and the mesne profit of Rupees 2880/-. The suit is maintainable both as a commercial suit for buying and selling of goods as well as a pure money suit. In 1968, the pecuniary limit was over Rs. 10000/- so far as this court is concerned. Mrs. Chowcharia, appearing for the plaintiff has submitted that whether a court has jurisdiction to try a suit or not should be ascertained from the averments of the plaint only. If the plaint shows that the court trying the suit has jurisdiction, the defendant is not entitled to displace the jurisdiction on the basis of the allegations in the written statement. In support, she relied on (Vasudev Gopalkrishna Tambwekar v. Board of Liquidators, Happy Home Co-operative Society Ltd.). In this case the society in an Arbitration Proceeding claimed that the respondent had ceased to be a member on account of default of payment of loan and demanded vacant possession. The respondent therein alleged before the Arbitrators that there was a relationship of landlord and tenant between the parties and as such only the Small Cause Court was competent to adjudicate on the dispute between the parties in view of the provisions of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act. The Arbitrators did not accept the contentions of the respondents and made the Award in favour of the society. A decree followed that Award after certain proceedings. At the stage of execution, the respondents took out a chamber application for stay of execution on the ground that the Award was made without jurisdiction and obtained an order in his favour. The society preferred an appeal and the order appealed from was set aside by the appeal Court, holding there was no relationship of landlord and tenant between the parties. The matter came up to the Supreme Court and at para. 10 of this report at p. 374 it was held :