NAVNITDAS Vs. MANCHARSA

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The respondents brought a suit for refund of money paid for the purchase of a motor car with interest against the appellant and obtained a decree in the trial Court. The defendant's appeal was dismissed by the District Judge and he has now preferred this second appeal. The facts are for the most part admitted, and the decision of the matter depends on certain questions of law. The third plaintiff-respondent Mir Yawarali purchased a " Ford " oar from the appellant and paid the full amount of the purchase money, namely, Rs. 200 as earnest money on the date of the agreement, 23rd August 1926, and the balance of Rs. 1,000 on 7th September 1926, on which date he took delivery. It appears however that the appellant had purchased the car from a company through an agent in Khandwa either on a hire-purchase agreement or on some agreement of payment by instalments. Unfortunately that agreement is not on the record, and the terms have not been proved. It is however established that at any rate the appellant had not paid the full price and had defaulted as regards some of the instalments due. The appellant after the sale to the respondent Mir Yawarali made a report to the police in the matter, and on that report the police seized the oar and, as there was a dispute in the matter, they returned it to the company from whom it had been purchased. Mir Yawarali took no action for some time, but on 19th June 1929 he executed a deed of transfer or assignment (Ex. P-2), in favour of the first two respondents Mancharsa and thakur Bakhtawarsingh, who had decrees against him. The suit was then brought on 9th September 1929.

(2.) THE appellant raised a defence with regard to the sale to Mir Yawarali, but that has been found against him by both the lower Courts, and it has now been taken as established that he did sell the oar to Mir Yawarali and that the full purchase price was paid. The main question to be determined, then, is whether the appellant had a title to transfer or whether owing to default in his title the vendee is entitled to recover damages from him under Section 109, Contract Act, Two other questions that remain to be decided are whether Mir Yawarali is entitled to interest and whether the transfer in favour of the first two respondents was invalid under Section 6, T.P. Act as a mere right to sue. Lastly, there is an appeal against the order of the lower Courts awarding costs by way of compensation under Section 35-A, Civil P.C.

(3.) THIS has been held in Belsize Motor Supply Co. v. Cox (1914) 1 KB 244 and also in Whiteley William, Ltd. v. Hilt (1918) 2 KB 808. The matter has been considered at great length in Cole v. Nanalal Morarji AIR 1925 Bom 18, where it was held that the agreement was an agreement of sale and that the principle in Lee v. Butler (1899) 2 QB 818 applied and that a good title was transferred by the purchaser in possession who had not paid the balance of the instalments. In the present case the agreement between the appellant and the company from whom he purchased the oar is not on the record and the terms have not been proved. The agent of the company Chajjulal has been examined as D.W. 6. The two relevant statements in his deposition are, first, "motor was purchased by instalments" and secondly, "it was agreed that if instalments were not paid motor shall be taken back.?