Lakshmi Devi vs A.R.Varghese

Sathish Ninan, J.

The decree in a suit for money is under challenge by defendants 1 to 4.

Defendants 1 to 4 are the legal heirs of one Dr. Jayakumar. The 5th defendant is a financier. The plaintiff purchased a Tata Safari Car by availing finance from the 5th  defendant. Ext.B11 dated 18.07.1998 is the hire purchase agreement. As per Ext.B11, the facility availed by the 5th defendant is to be repaid in 36 instalments of ₹30,500/- each. The plaintiff could pay only five instalments. On 11.02.1999 he sold the vehicle to Dr. Jayakumar. Thereafter Dr. Jayakumar paid only nine instalments. On 03.09.1999 he sold the vehicle to one Narayanankutty. Narayanankutty defaulted in payment of the intalments. Thereupon the fifth defendant issued Ext.B14 notice dated 14.11.2000 to the plaintiff. The plaintiff paid the then defaulted instalments amounting to ₹3,01,604/-. The suit was instituted thereafter seeking the following reliefs:-

(i) To direct defendants 1 to 4 to pay the balance outstanding to the 5th defendant financier.

(ii) For a decree against defendants 1 to 4 for realisation of ₹3,01,604/-.

(iii) On default of defendants 1 to 4 to pay the balance outstanding to the 5th defendant, to permit the plaintiff to pay the same and recover it from defendants 1 to 4.

Defendants 1 to 4 filed written statement contending that, their predecessor Dr. Jayakumar had not purchased the vehicle. Due to financial difficulties the plaintiff was unable to pay the instalments. On the intervention of a broker known to Dr.Jayakumar, the possession of the vehicle was handed over to Dr. Jayakumar on an understanding that he was to pay few instalments and that the plaintiff would repay the same and take back the vehicle. He paid 9 instalments totalling to ₹2,74,500/-. Subsequently, on 03.09.1999, the plaintiff through his son took back the vehicle on paying ₹1,50,000/-. Balance amount of ₹1,24,500/- is due to Dr.Jayakumar. A counter claim was raised for the said amount. The suit is liable to be dismissed and the counter claim decreed, it was contended.

In the meanwhile, the 5th defendant financier had filed a suit against the plaintiff herein as OS 222/2001 for recovery of the amounts due under Ext.B11 hire purchase agreement. Both suits were jointly tried.

The trial court granted a decree allowing the plaintiff to realise an amount of ₹3,01,604/- from the assets devolved on defendants 1 to 4 from Dr. Jayakumar. The plaintiff was also granted a decree allowing him to realise the balance amounts due under the hire purchase agreement, from the legal heirs of Dr. Jayakumar viz. defendants 1 to 4 herein. The counter claim was dismissed.

I have heard learned counsel on either side.

The points that arise for determination are :-

(i) Is the finding of the trial court that the arrangement between the plaintiff and Dr.Jayakumar was a transaction of sale, sustainable on the evidence ?

(ii) Is the finding of the trial court that Dr. Jayakumar and as his legal heirs-defendants 1 to 4, are liable for payment of amounts due to the fifth defendant financier, sustainable ?

(iii) Does the decree and judgment of the trial court warrant any interference ?

The plaintiff alleges that the vehicle was sold to Dr.Jayakumar on 11.02.1999 with the liability to wipe off the debt due to the fifth defendant financier. After paying nine instalments Dr. Jayakumar sold the vehicle to one Narayanankutty. Narayanankutty committed default. Thereupon the plaintiff is being proceeded against by the financier. Since Dr.Jayakumar to whom the plaintiff sold the vehicle with the liability is no more, his legal heirs are bound to indemnify the plaintiff, is the case in sum and substance. Defendants 1 to 4 disputed the liability alleging that though Dr. Jayakumar was handed over possession of the vehicle with the liability to pay instalments due to the fifth defendant financier, it was only a temporary arrangement. When the amounts paid by Dr.Jayakumar is repaid by the plaintiff, the vehicle was to be restored. There was no sale of the vehicle as such. Subsequently the vehicle was taken back by the plaintiff on payment of ₹1, 50,000/-. Further amount of ₹1,24,500/- remained to be paid. Therefore, Dr. Jayakumar or his legal heirs viz. defendants 1 to 4 have no liability towards the plaintiff or the financier, is the defence. An amount of ₹1,24,500/- is still outstanding to Dr.Jayakumar is the claim.

Irrespective of as to the nature of the transaction, that possession of the vehicle with the liability to pay the instalments was transferred to Dr. Jayakumar, is not in dispute. That pursuant to such transfer, Dr. Jayakumar had paid nine instalments directly to the financier is also not in dispute. Defendants 1 to 4 allege that the vehicle was taken back by the plaintiff on payment of ₹1,50,000/- and that balance amount of ₹1,24,500/- is outstanding. Therefore what needs to be proved is that the plaintiff had taken back the vehicle. There is no document produced evidencing that the vehicle was returned/taken back possession of by the plaintiff from Dr. Jayakumar. There is no evidence to show the payment of ₹1,50,000/- as claimed by the defendants. According to the defendants the vehicle was got returned by the plaintiff in the presence of one Kunjumon who is a broker, and the plaintiff's son who is the power of attorney holder of the plaintiff. However, they have not chosen to examine the said Kunjumon to prove such incident. Though the learned counsel for defendants 1 to 4 would argue that the burden of proof lies on the plaintiff, on the facts as noticed above, when defendants pleaded that the plaintiff had repossessed the vehicle on payment of ₹1,50,000/-, the burden is on them to prove such incident. There is total lack of evidence to support the defence claim.

Incidentally, the evidence on record with regard to the sale of the vehicle by the plaintiff to Dr. Jayakumar could be considered. Exts.B1 to B4 produced by the defendants are blank signed form for transfer of ownership, insurance etc., which were admittedly given by the plaintiff to Dr. Jayakumar at the time of transfer. If there was no intention to transfer, such transfer forms would not have been given by the plaintiff to Dr. Jayakumar. Even though the defendants allege that the vehicle was regained possession off by the plaintiff from Dr. Jayakumar, Exts.B1 to B4 documents are still with the defendants. If there was such repossessing of the vehicle and the transaction between the plaintiff and Dr. Jayakumar was not intended as a sale, then necessarily Exts.B1 to B4 documents would have been taken back by the plaintiff. This is a circumstance suggesting that the parties intended a transfer of the vehicle.

The learned counsel for the appellants would vehemently contend that the documents relied on by the plaintiff to prove the alleged transfer of the vehicle by Dr. Jayakumar to Narayanankutty are only photostat copies which could not be admitted or relied in evidence.

Ext.A1 is the copy of the agreement between Dr.Jayakumar and Narayanankutty. Ext.A2 is the copy of the complaint given by Dr. Jayakumar to Njarakkal Police Station. DW1 admitted that the handwriting in Ext.A2 is that of her husband Dr.Jayakumar. Ext.X1 is the certified copy of a petition register kept in the Njarakkal Police Station. PW3 is the police constable working there. There is an entry that Dr. Jayakumar had preferred a complaint to the Njarakkal Police Station against Narayanankutty in respect of vehicle in question alleging transfer by him to Narayanankutty on the basis of an agreement and that Narayanankutty committed default in payment of the instalments payable to the financier. Exts.X4(a) and X4(b) are copies of Exts.A1 and A2 produced by the Sub Inspector of Police, Mannarkkad stating to be documents produced by Dr. Jayakumar along with the complaint since Narayanankutty was a resident at Mannarkkad. DW1 has admitted that the handwriting in Ext.X4(a) and X4(b) are similar to that of her husband. PW2 is an attestor to Ext.A1. He has identified his signature therein. He has also vouched to the transaction. Ext.A7 is the statement given by Dr. Jayakumar under Section 161 of the Cr.P.C. Ext.A6 is the FIR. PW3, the Police Constable, has deposed that Ext.A7 was recorded in his handwriting and that the statement was given by Dr. Jayakumar. All these lend credence to the plaintiff's contention with regard to transfer of vehicle to Dr. Jayakumar.

The transfer of the vehicle to Jayakumar being on 11.02.1999, if the plaintiff is required to pay any of the instalments to the fifth defendant subsequent thereto, he is entitled to have the same realised from Dr. Jayakumar. ₹3,01,604/- which is claimed in relief No.2 are the payments made by the plaintiff for the defaulted amounts after the transfer to Dr. Jayakumar. As regards the further liability due to the financier, in the light of the privity of contract between the plaintiff and the 5th defendant financier, the plaintiff is liable to pay the amount. As held by the trial court, the plaintiff though bound to pay such amount, he is entitled to recover it from defendants 1 to 4 as the legal heirs of Dr. Jayakumar.

The learned counsel for the appellants would argue that, without defendants 1 to 4 herein being made parties in O.S.222/2001 which is the suit filed by the financier, they could not be made liable for the amount decreed therein. Even the rate of interest granted is excessive and arbitrary, it is argued. The appellants cannot be made liable for the same, it is argued. As noticed earlier, both the suits were jointly tried. In O.S. 222/2001 it has been held that the plaintiff is entitled to recover the balance instalments amounting to ₹5,29,060/- with interest at the rate of 20%. The first defendant, on payment was permitted to recover the same from the assets of Dr. Jayakumar which are inherited by defendants 1 to 4. The suits having been jointly tried it cannot be said that these defendants did not have opportunity to challenge on the quantum, interest etc. A decree having been passed against defendants 1 to 4 they had the right to challenge the decree in appeal.

However, they have not chosen to do so. Therefore, the decree having become final, the argument of the learned counsel has no force.

Defendants 1 to 4 have filed a counter claim for realisation of ₹1,24,500/-. According to the defendants an amount of ₹2,74,000/- was remitted by Dr. Jayakumar towards the instalments that fell due after taking possession of the vehicle from the plaintiff. At the time of taking back the vehicle, the said amount of ₹2,74,500/- was agreed to be paid to Dr. Jayakumar. Out of the same an amount of ₹1,50,000/- was paid and the balance was agreed to pay immediately. However, the said amount was not paid. It is for the said balance amount that the counter claim was raised.

As has been noticed earlier, there is no evidence that the plaintiff had taken back the vehicle from Dr. Jayakumar on payment of ₹1,50,000/- or on the agreement to pay a further amount of ₹2,74,500/-. On such finding, the claim of defendants 1 to 4 for the alleged balance amount thereunder, cannot be sustained. The trial court was right in having dismissed the counter claim.

On the above discussions, I hold that the decree and judgment of the trial court warrants no interference.

Resultantly, the appeal fails and is dismissed.