VENKATESWAR Vs. RAMPRATAP

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 26.4.1990 passed by the learned District Judge, Jhalawar in Civil Original suit No. 3/82 (Venkateswar v/s. Rampratap). By the aforesaid judgment and decree, the learned District Judge has dismissed the suit filed by the present appellant, who was the original plaintiff of the said suit. The plaintiff herein instituted the aforesaid suit for recovering of Rs. 37,900/ - before the learned trial Court on the ground that on 26.9.1978 defendant Rampratap had sold a motor car being Premier Padmini Fiat Car to the plaintiff -appellant having Registration No. RRG -3625 (Chassis No. PA -200583 and Engine No. PA -120858) for a consideration of Rs. 22,001/ -, For the aforesaid transaction, the defendant also executed a receipt (Ex. 1). After the said purchase, the registration of the said car was also transferred in the name of the plaintiff, which took place at Registration Office at Jhalawar. The said vehicle was given thereafter new Registration No. CPF -7929 as the vehicle was subsequently registered at RTO, Indore. It is also the case of the plaintiff that after the purchase of the said car, the plaintiff started using the said vehicle and he had also incurred some expenditure in repairing the said vehicle. According to the plaintiff, the said car was used by his brother -in -law, Nirmal Kumar Garg at Indore. At the relevant time, the said car was in possession of his brother -in -law and at that time on 2.6.1979, the Delhi Police came and seized the said car on the ground that it was a stolen vehicle on the basis of the complaint filed before the Delhi Police under Sec. 379 I.P.C., which was registered at Police Station, Parliament Street, Delhi. It is the case of the plaintiff that in view of the seizure of the said car by the police on 2.6.1979, from that date the plaintiff has been denied the possession and enjoyment of the said car and that it is a failure of consideration and on that basis, the plaintiff is entitled to recover the said amount being the price of the car realized by the defendant. Plus Rs. 9,900/ - being amount of interest on the sale price calculated @ 15% P.A. and Rs. 6,000/ - on the basis of rise in the price of car damages. In total, the plaintiff has filed the suit for recovery of Rs. 37,900/ - before the learned trial Court. According to the plaintiff, the said rate of interest is charged as per the prevailing bank rate.

(2.) The aforesaid suit was resisted by the defendant by filing written statement. It is the case of the defendant that the said car was initially recovered from the possession of one Biharilal and one Pritam Singh S/o. Shri Gopal Singh Sardar, who is relative of said Biharilal in Bhawani Mandi, and he had taken the possession of the said car from the police custody by giving security and thereafter for about 15 -20 days the said car had remained at the house of Pritam Singh in Bhawani Mandi. It is also the case of the defendant that the brother -in -law of the plaintiff, namely, Nirmal Kumar Garg is doing the business of repairing the motor vehicles and also doing the business of re -selling the motor vehicles in Bhawani Mandi. Said Nirmal Kumar used to visit at Bhawani Mandi and during his visit at Bhawani Mandi, he saw the said car. Since said Nirmal Kumar is doing the business of purchasing motor vehicles, the plaintiff and Nirmal Kumar both inspected the said car along with the papers of the said car as Nirmal Kumar wanted to purchase the said car. The plaintiff and the defendant both were having good relationship. It is also the case of the defendant that the defendant wanted to go for pilgrimage and, therefore, the defendant informed the plaintiff that he is also willing to purchase the said car but when the defendant realized that since Nirmal Kumar wanted to purchase the said car, he ultimately informed the plaintiff that he is interested in purchasing the said car for a limited period as he wanted to go for pilgrimage and after returning from the pilgrimage, he will re -sale the said car to the plaintiff. The plaintiff and his brother -in -law helped the defendant in purchasing the said car. At the time of said purchase, Biharilal had assured the defendant that the registration of the car will be transferred in favour of the purchaser and on such assurance, the defendant had purchased the said car and after the said purchase, the registration of the car was transferred in favour of the defendant. After returning from the pilgrimage, the defendant informed the plaintiff whether he is willing to purchase the said car and thereafter, he purchased the said car with a full knowledge about its title. At the time of purchasing the said car, the defendant and Nirmal Kumar both were present and both agreed to help the plaintiff in getting NOC from Registration Office, Jaipur as the same was required by Nirmal Kumar for registration at Indore in M.P. and therefore, NOC was given by the defendant in Rajasthan. Even though, the price was agreed at Rs. 22,000/ -, the plaintiff had paid only Rs. 18,000/ - to the defendant and assured the defendant that the remaining amount will be paid later on the after getting the NOC. Thereafter, the plaintiff himself went to Jaipur and took the NOC from Transport Department but the remaining amount i.e. Rs. 4,000/ - was not paid to the defendant. According to the defendant, at the time of sale, whatever title, which was in favour of the defendant, was in the knowledge of the plaintiff and in spite of the said knowledge, he purchased the said car from the defendant. It is also the case of the defendant that the possession of the said car remained with Nirmal Kumar and he was not aware whether any improvements were made subsequently in the said car. It is also the case of the defendant that since the plaintiff had transferred the NOC and registration of the car in favour of Nirmal Kumar, the plaintiff had no right to file the suit against him. On the aforesaid grounds, the suit of the plaintiff was resisted by the defendant.

(3.) Learned trial Court framed as many as six issued arising out of the pleadings and after considering the oral and documentary evidence available on record, the trial Court has found that the defendant has failed to prove that the plaintiff had not paid the remaining amount of Rs. 4,000/ - of the sale consideration. On issue No. 2, the learned trial Court has found that at the time of purchasing the said car, the fact that the said car was a stolen vehicle was in the knowledge of the plaintiff. The trial Court also found that the plaintiff is not entitled to get benefit of Sec. 14 of the Sale of Goods Act, 1939 (for short 'the Act'). The trial Court also found that the plaintiff has transferred the vehicle to his brother -in -law, Nirmal Garg. The trial Court believed the say of the defendant that the defendant purchased the said car from Biharilal who in turn transferred it to his brother -in law Nirmal Kumar and the fact that Nirmal Kumar was present during the transaction, goes to show that the car was purchased by him. The trial Court found that the plaintiff had no right to file the suit as he had transferred the car to his brother -in -law. The trial Court also came to the conclusion that since the plaintiff could not file any suit against his relative, therefore, the suit was filed against the present defendant. Accordingly, the trial Court dismissed the suit filed by the plaintiff, against which the plaintiff has filed this first appeal before this High Court under Sec. 96 of the C.P.C.