Dismissed

V.T.Selvarajan v. Bagmur Finance Corpn.

Kerala HC9 Feb 2016AS/496/1998

Case brief

AI extract

What is this about?

The High Court dismissed the appeal by the plaintiff/defendant in a suit for declaration, injunction, and damages arising from a disputed vehicle repossession. The court affirmed the lower court's decision to deny special damages due to lack of evidentiary particulars and held that the lower court could not invoke inherent powers to grant the finance company a separate claim.

What the court decided

AI extract

V.T.Selvarajan Vs Bagmur Finance Corpn. — Contract and Commercial Disputes | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937

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A.S.No. 496 of 1998 (D)

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AGAINST THE JUDGMENT AND DECREE IN OS 1105/1991 of PRL.SUB COURT,THRISSUR DATED 28-07-1997

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APPELLANT/PLAINTIFF:

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V.T.SELVARAJAN

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S/O VEERACHAMI THANKAPPAN NADAR 12/437, AMBADY LANE, KOKKALAI, THRISSUR.

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BY ADV. SRI R SREEHARI

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RESPONDENTS/DEFENDANTS:

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BAGMUR FINANCE CORPN.

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REPRESENTED BY ITS PROPRIETOR T.RAJENDRAKUMAR BAGMUR S/O JAMMARUMMAL BAGMUR 100 NSC BOSE ROAD, MADRAS 79

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A.S.VINOD, S/O A.S. PILLAI AT ROAD, SOUTH FORT MAVELIKKARA, ALAPPUZHA DISTRICT.

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R1 BY ADV. SRI.S.MUHAMMED HANEEFF

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R1 BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA)

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & A.HARIPRASAD, JJ.

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- - - - A.S.No. 496 of 1998 (D)

JUDGMENT

9TH FEBRUARY 2016

ANTONY DOMINIC & A.HARIPRASAD, JJ.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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A.S.No.496 of 1998

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9^th day of February, 2016

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JUDGMENT

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Hariprasad, J.

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The suit is one for declaration, injunction and damages. Defendants are the respondents. Second defendant was the owner in possession of a lorry bearing No.KRA 645. While so, the second defendant handed over possession of the vehicle to one P.S.Muhammed Sherif as per Ext.A2 document. Virtually that was an agreement to sell the vehicle. P.S.Muhammed Sherif agreed to sell the vehicle to the plaintiff for a sum of Rs.1,60,000/- and executed another agreement, Ext.A3, dated 26.1.1987. On the date of the agreement, Rs.30,000/- was paid by the plaintiff to P.S.Muhammed Sherif and balance was agreed to be paid within 60 days thereafter. Plaintiff took possession of the vehicle. Out of the remaining sale consideration, Rs.30,000/- was paid by the plaintiff in two instalments. Since the plaintiff was not having sufficient funds to pay balance Rs.1,00,000/-, he approached the first defendant/finance

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A.S.No.496 of 1998

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company's branch at Moovattupuzha for availing a loan and executed Ext.B1 agreement. Admittedly, there was some default on the part of the plaintiff in repaying the loan availed from the first defendant. Therefore, the first defendant caused repossession of the lorry on 31.12.1988. Thereafter the first defendant filed O.S.1856/1989 before the City Civil Court, Madras against the plaintiff and the second defendant for an injunction against forceful taking of possession of the vehicle. The suit was decreed by the trial court. An appeal was preferred. The Appellate Court allowed the appeal and reversed the decree of the trial court. The Appellate Court found that Ext.B1 transaction is not in the nature of a hire purchase transaction. But, it is only a loan arrangement. This finding has become final. Therefore, the plaintiff seeks the aforesaid reliefs.

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First defendant opposed the suit. According to the company, transaction is a hire purchase arrangement. On account of the default in repayment of the amount, the first defendant is legally entitled to

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A.S.No.496 of 1998

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repossess the vehicle. The first defendant company is legally entitled to recover money from the plaintiff for his breach.

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The court below examined PW1 and DW1 on both sides.

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Exts.A1 to A15 and B1 to B3 are the documents of the plaintiffs and the defendants respectively. C1 and C3 are the Commission's Report.

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The court below, after considering the evidence on record, decreed the suit in part. Plaintiff is dissatisfied by the disallowance of special damages claimed by him, alleging that he sustained loss due to the seizure of the vehicle. According to the testimony of PW1, the vehicle could have earned Rs.200/- per day, had it been plied from 31.12.1988 to 19-9-91, the date on which the suit is filed.

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Learned counsel for the plaintiff contended that reason stated by the trial court for denying the claim as special damage is unsustainable. The reasoning of the court below is that the plaintiff did not take prompt step to repossess the vehicle in spite of the fact that the vehicle was seized by the first defendant on 31.12.1988. According to the trial court, long delay in taking steps on the part of the plaintiff is a

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A.S.No.496 of 1998

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factor to be taken into account for denying the claim of special damage. We notice the fact that though there is some delay on the part of the plaintiff, the suit is still within the period of limitation. The settled legal preposition is that a person seeking special damages will have to specifically plead and prove the case and also the quantum of damage. In the present case, we do not find any pleading entitling the plaintiff to claim a special damage. Further, there is only a single sentence deposed by PW1 that during the relevant period, the lorry in dispute would have fetched an income of Rs.200/- per day, if somebody had hired it. How many days it would have been plied on hire during the relevant period is not established by any evidence. Therefore, we notice no reason to find fault with the court below for denying the special damage.

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The court below did not choose to grant any relief claimed by the first defendant. Learned counsel for the first defendant contended that the company is entitled to get the amount from the plaintiff. He sought invocation of power under Order 41 Rule 33 C.P.C. We express our inability to accept this contention for the reason that power under

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A.S.No.496 of 1998

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Order 41 Rule 33 C.P.C. cannot be invoked in a case where a specific plea

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raised by a party had been abandoned at the time of trial.

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Considering all facts and circumstances, we are of the view that

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the impugned judgment does not suffer from any legal infirmity.

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In the result, appeal fails and it is dismissed.

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SD/-

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ANTONY DOMINIC JUDGE

SD/-

A.HARIPRASAD

JUDGE

jes

V.T.Selvarajan v. Bagmur Finance Corpn.

Case brief

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V.T.Selvarajan v. Bagmur Finance Corpn.

Case brief

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