Dismissed

R Vijayalakshmi v. Kevalchand Mehtha & Sons

Karnataka HC20 Nov 2023RFA/1075/2007

Case brief

AI extract

What is this about?

This first appeal challenged a judgment dismissing a suit for permanent injunction against an auto-rickshaw. The appellate court found the appellant failed to prove full payment and affirmed the defendant's right to repossess based on the hire purchase agreement. The appeal was dismissed.

What did the court decide?

The appeal was dismissed. The trial court's judgment and decree were upheld. No order as to costs.

R Vijayalakshmi Vs Kevalchand Mehtha & Sons — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 1075 OF 2007 (INJ)

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BETWEEN:

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R. VIJAYALAKSHMI, D/O KRISHNAMURTHY, AGED ABOUT 39 YEARS, NO.77/7, 6^TH CROSS, III MAIN, PRAKASHNAGAR, BANGALORE - 560 021.

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…APPELLANT

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(BY SRI. S. SHAKER SHETTY AND SRI. A. ANILKUMAR SHETTY, ADVOCATES)

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AND:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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KEVALCHAND MEHTHA & SONS, FINANCIERS, NO.17/4, KANDAPPA, MUDALI STREET, SOWCARPET, CHENNAI - 600 079. …RESPONDENT (BY SRI. K.A. CHANDRASHEKAR, ADVOCATE)

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THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED:08.01.2007 PASSED IN OS.NO.4633/2000 ON THE FILE OF THE V ADDL.CITY CIVIL JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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NC: 2023:KHC:41583 RFA No. 1075 of 2007

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the arguments of Sri.A.Anil Kumar Shetty, learned counsel for the appellant.

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Sri.K.A.Chandrashekar, learned counsel for

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respondent is present.

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The present suit is filed challenging the judgment and decree passed in O.S.No.4633/2000 dated 08.01.2007 on the file of Vth Addl. City Civil Judge, Bengaluru City, whereby, suit of the plaintiff is hereby dismissed.

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Brief facts of the case which are utmost necessary for disposal of the appeal are as under:

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Plaintiff filed a suit seeking permanent injunction restraining the defendant from seizing the auto-rickshaw bearing No.KA 02 A 8116 and also interfering with smooth running of the said auto-rickshaw.

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3 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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Admittedly, the said auto-rickshaw belonged to

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one Nawaz, son of Abdul Jabbar. He sold the said vehicle on 15.12.1997. Plaintiff borrowed a sum of Rs.25,000/from defendant in order to purchase the said autorickshaw.

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There was an endorsement made in the registration certificate that the said auto-rickshaw was subject to Hire Purchase Agreement.

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Plaintiff was supposed to repay the amount to defendant on monthly installment in a sum of Rs.3,000/and plaintiff has paid the entire amount of Rs.30,000/including interest and there remains nothing to be paid by the plaintiff.

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However, according to defendant, plaintiff has to pay some more amounts and he did not intimate exact amount that was to be paid by plaintiff to the defendant. Plaintiff was also ready to pay the balance amount. When the matter stood thus, defendant without making any

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4 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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demand for the remaining amount, attempted to seize the vehicle and take it to Chennai. Defendant's representative at Bengaluru, threatened the plaintiff that he would seize the vehicle and take it away. Therefore, suit came to be filed by the plaintiff.

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Upon service of suit summons, defendant entered appearance and filed written statement by denying the payment of entire loan amount and also denied other averments with regard to the illegal seizing of auto-rickshaw which is the subject matter of hire purchase agreement.

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Further, defendant contended that plaintiff is a chronic defaulter and auto-rickshaw was purchased by the plaintiff on the basis of hire purchase and therefore, defendant had every right to repossess the auto-rickshaw in accordance with law and opposed the suit claim.

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Based on the rival contentions of the parties, Trial Court framed following issues:

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5 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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1. Whether the plaintiff prove that cause of action as alleged in the plaint?

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2. Whether the plaintiff is entitled to seek the relief as sought for?

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3. What order or decree?

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In order to prove the case of the plaintiff,

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plaintiff got examined herself as P.W.1 and relied on 15 documents which are exhibited and marked as Ex.P.1 to

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Ex.P.15 comprising of R.C.Book, Insurance certificates, Permit and receipts regarding payment made to the defendants.

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On behalf of defendant, Sri.Ashok Kumar Mehta got examined as D.W.1 and relied on 3 documents which are exhibited and marked as Ex.D.1 to Ex.D.3 comprising of hire purchase agreement, signatures, certificate of posting and covering letter.

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On conclusion of recording of evidence, learned Trial Judge heard the parties in detail and after considering the oral and documentary evidence on record, dismissed the suit of the plaintiff.

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NC: 2023:KHC:41583 RFA No. 1075 of 2007

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15. Being aggrieved by the same, plaintiff has

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preferred the present appeal on following grounds:

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The trial Court ought to have held that in the year 1997, even a new auto rickshaw was not worth Rs. 1,20,000/-. Admittedly, the auto rickshaw which was purchased is a second hand by the appellant and the sale price was Rs.40,000/- Hence, the question of hypothecating for Rs. 1,20,000/would not arise for consideration.

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The trial court ought to have held that under the Motor Vehicles Act, if a hire purchase agreement is entered into, it must be entered in the R.C. Admittedly, there is no entry for the alleged hire purchase agreement dated 12.12.1997. On the contrary, the entry is made on 12.1.1998. It is for a sum of Rs.25,000/-. Hence, the trial court ought to have held the alleged agreement dated 12.12.1997 is a fabricated document. When the appellant was not the owner on that day, the appellant could not have executed such a document as the appellant purchased the auto rickshaw on 15.12.1997.

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The trial court ought to have held that once it is admitted by the respondent that he has received Rs.30,000/in 10 installments when the amount advanced was Rs.25,000/- and all the amount was paid and there is no due at all.

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The trial court ought to have held that under any circumstance, the hire purchase act has not come into force as held by the Supreme Court as well as this Hon'ble

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NC: 2023:KHC:41583 RFA No. 1075 of 2007

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Court, hence any agreement under the said enactment is invalid and it cannot be enforced in the court of law. The respondent herein cannot be the owner of the vehicle as Nawaz was the owner and the appellant herein purchased from Nawaz and registration certificate, insurance and permit is standing in her name and road tax is paid by her. Under no stretch of imagination, the respondent can be the owner of the property. Hence, even if there is some agreement, by that agreement, he cannot take possession of the auto rickshaw. Only under the law he can claim possession through court.

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The trial court has not considered the oral evidence in a proper perspective nor the documentary evidence and committed an error. The Judgment and Decree of the Court below is otherwise opposed to law, facts, and probability of the case and weight of evidence. The certified copy of the Judgment is herewith enclosed.

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Sri.A.Anilkumar Shetty, learned counsel for the

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appellant reiterating the grounds urged in the appeal memorandum, vehemently contended that the Hire Purchase Act is not in force though it has been passed by obtaining necessary concurrence from the Legislature, but yet to be notified. As such, the provisions of Hire

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Purchase Act cannot be enforced by Courts of law and sought for allowing the appeal.

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He also pointed out that in the absence of Hire Purchase Act being in force, learned Trial Judge recorded a finding that defendant is a defaulter and therefore, plaintiff was entitled to repossess the auto-rickshaw, is incorrect and sought for allowing the appeal.

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There is no representation on behalf of the respondent.

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In the light of the arguments put-forth on behalf of the appellant, this Court perused the material on record meticulously. On such perusal of material on record, following points would arise for consideration:

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"1. Whether the plaintiff has made out a case that defendant is entitled to repossess auto-rickshaw bearing No.KA 02 A 816 and thereby, plaintiff is entitled for order of injunction?

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9 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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2. Whether impugned judgment is suffering from legal infirmity or perversity and thus needs interference of this Court?

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3. What order?"

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REG.POINT Nos.1 AND 2:

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In the case on hand, the ownership of autorickshaw being possessed by Nawaz son of Abdul Jabbar, is not in dispute. Subsequently, plaintiff borrowed a sum of Rs.25,000/- from defendant for purchase of the said auto-rickshaw and in this regard, there was hire purchase agreement entered into.

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In the hire purchase agreement, defendant claimed sum of Rs.1,20,000/- to be paid over a period of 40 installments, which included principal amount and interest. Equated monthly installment of Rs.300/- was fixed in the agreement.

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According to defendant, there is a due in a sum of Rs.1,15,452/- even after giving deduction to all payments made by plaintiff.

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10 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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The material available on record would go to show that there is an endorsement in RC book that autorickshaw is subject to hire purchase rights exercisable by defendant. Under such circumstances, material on record is to be appreciated.

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Admittedly, plaintiff has stated that he has paid entire amount of Rs.30,000/- with interest. However, receipts that has been produced and marked at Ex.P.6 to P.15 would only go to show that part payment has been made by defendant towards the dues and not entire dues.

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Even though Hire Purchase Act is not in force, the contract entered into between the plaintiff and defendant is to be looked from the angle of Indian Contract Act, 1872.

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Under the hire purchase agreement, plaintiff is only a hirer till the last installment is paid by the plaintiff and thereafter, by paying a nominal amount, plaintiff has to exercise ownership rights over the auto-rickshaw that

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11 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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has been the subject matter of hire purchase agreement. Till such time, it is the defendant, who is the owner of the auto-rickshaw.

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In the case on hand, as referred to supra, Ex.P.6 to Ex.P.15 would only go to show that plaintiff has paid only few installments and not entire dues as is found in hire purchase agreement. Even those installments that has been paid by the plaintiff is not regular as could be seen from the dates that are mentioned in Ex.P.6 to Ex.P.15.

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Under such circumstances, plaintiff cannot

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exercise the ownership over auto-rickshaw, which is the subject matter of hire purchase agreement. Till last installment is paid and payment of nominal amount as is agreed by the parties in hire purchase agreement ownership right vests with defendant and plaintiff is only a hirer.

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Under the hire purchase agreement - Ex.D.1, it is crystal clear that defendant possesses the right to

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12 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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repossess the vehicle in question, if there is an default in payment of the hire installment. Admittedly, since there is a default committed by plaintiff, a notice came to be issued which was sent under certificate of posting, which is marked at Ex.D.2.

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Despite service of such notice, plaintiff failed to make payment of dues to the defendant. Therefore, defendant has exercised its right of repossession of the auto-rickshaw.

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Under such circumstances, learned Trial Judge has found that plaintiff has not made out a case that he is entitled to possess the said auto-rickshaw in question and the possession, if any, by the plaintiff, is not lawful possession of the auto-rickshaw.

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Even after re-appreciating the material evidence on record, this Court does not find any legal infirmity or perversity in recording such a finding by Trial Court.

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13 - NC: 2023:KHC:41583 RFA No. 1075 of 2007

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On the contrary, the reasoning assigned by

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learned Trial Judge in the impugned judgment that plaintiff has failed to make out a case for grant of injunction, is just and proper having regard to facts and circumstances of the case.

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In view of the foregoing discussions of the case, point Nos.1 and 2 are answered in negative.

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REG.POINT NO.3:

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In view of the findings of this Court on point Nos.1 and 2 as above, following:

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ORDER

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i. Appeal is meritless and hereby dismissed.

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ii. No order as to costs.

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Sd/JUDGE

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KAV List No.: 1 Sl No.: 27, CT:SNN

R Vijayalakshmi v. Kevalchand Mehtha & Sons

Case brief

What is this about?

What did the court decide?

R Vijayalakshmi v. Kevalchand Mehtha & Sons

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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