Shree Kishan vs Rajendra Varma

N.K. Mody, J.—Being aggrieved by the Judgment and Decree dated 7.8.2004 passed by ADJ (Fast Track Court), Shujalpur in Regular

Civil Appeal No. 7-B/2004 whereby the Judgment and Decree passed by the learned Civil Judge Class-II, Shajapur dated 27.9.2003 in civil suit

No. 19-B/2002 was set aside and the suit filed by the respondent was decreed with a direction to pay Rs. 15,000 along with interest @ 6% per

annum, the present revision petition has been filed.

Short facts of the case are that the petitioner was the owner of the Motor-bike Hero Puch bearing No. MP 009 CC 3335 which was

purchased by him under a Hire Purchase Agreement. As per the agreement, the price of the vehicle was to be paid in 24 instalments of Rs. 1150

per month for which advance cheques were given by the petitioner.

Vide Agreement dated 7.12.2000, petitioner entered into an agreement with the respondent and agreed to sell the said Hero Puch for a sum of

Rs. 15,000 out of which a sum of Rs. 12,000 was paid by the respondent to the petitioner and rest of the amount of Rs. 3000 was payable by the

respondent to the petitioner in two equal instalments, out of which first instalment was payable within a period of 3 months and second instalment

of Rs. 3000 was payable when the petitioner will transfer the vehicle in the name of the respondent. The possession of the vehicle was given by the

petitioner to the respondent at the time of agreement. A civil suit was filed by the respondent for realisation of Rs. 21,500 along with interest

wherein it was alleged that since the petitioner failed to make the payment of instalment to the Financier, therefore in the month of April 2001, the

vehicle was taken back by the Financier. It was alleged that apart from Rs. 12,000 which were given at the time of the agreement, balance amount

of Rs. 3000 was also paid by the respondent to the petitioner on 7.12.2001. It was alleged that in spite of notice, petitioner did not take any action

to pay the instalment or to get the vehicle delivered back to the petitioner from the Financier.

The petitioner submitted the written statement wherein receipt of Rs. 12,000 was not disputed. It was denied that balance amount of Rs. 3,000

was paid by the petitioner. It was also submitted that respondent himself has deposited the vehicle with the Financier because of the accident. It

was alleged that petitioner is entitled to recover the amount of Rs. 3,000 from the respondent. It was prayed that suit be dismissed.

On the basis of pleadings of parties, the learned Trial Court framed the issues, recorded the evidence and dismissed the suit vide Judgment and

Decree dated 27.9.2003 against which an appeal was filed by the respondent which was allowed and the Judgment and Decree dated 27.9.2003

was set aside with a direction to the petitioner to pay a sum of Rs. 15,000 along with interest.

Learned Counsel for petitioner submits that date of agreement is 7.12.2000. Possession of the vehicle was given by the petitioner at the time of

execution of the agreement on payment of Rs. 12,000 and balance amount was payable in two instalments, out of which one instalment was

payable at the time of transfer of vehicle in the name of respondent. It is submitted that there is nothing on record to demonstrate that the amount of

Rs. 3,000 was paid to the petitioner. It is submitted that either in the Notice Ex. P/1 dated 17.7.2001 or in the plaint it is not mentioned that when

and in what manner the vehicle was seized by the Financier from the respondent. Similarly, the Financier was not impleaded as party to the suit

while he was the necessary party as the vehicle is in possession of the Financier as alleged by the respondent. Learned Counsel for the petitioner

submits that the suit has been filed in connivance with the Financier.

Since in the suit, it is nowhere alleged that on what date and in what manner the possession of the vehicle was taken by the Financier from the

respondent and it is also not made clear that immediately after delivery of possession of the vehicle what action was taken by the respondent,

therefore, it appears doubtful that possession of the vehicle was forcibly taken from the respondent. Apart from this, there is no justification on the

part of the respondent why the Financier was not impleaded as a party to the suit.

Notice is dated 17.7.2001. Suit is filed on 12.9.2002. No FIR is lodged by the respondent when the vehicle was taken. No insistence was

made by the respondent to transfer the vehicle in his name, when he delivered the alleged last instalment, which was necessary as per the

agreement.

In the facts and circumstances of the case, the revision is allowed. The Judgment and Decree dated 7.8.2004 passed by ADJ (Fast Track

Court), Shujalpur in Regular Civil Appeal No. 7/2004 is set aside and the Judgment and Decree dated 27.9.2003 passed in Civil Suit No. 19-

B/2002, passed by I Civil Judge Class-II, Shajapur is maintained. No order as to costs.

C.C. as per rules.