Sivaramalinga Thevar vs V.S.T. Ahamed Haseem

Raghavan, J.—The plaintiff is the appellant. The suit is to recover Rs. 5127/- being the balance of the sale consideration of the lorry said to

belong to him (MDR 2974). The plaintiff''s case is that he is the owner of the lorry bearing No. MDR 2974, that he sold the lorry to the defendant

at Melapalayam on 18-8-1961 for Rs. 9750/- that the defendant made part payment of Rs. 5000/- and took delivery of the lorry, that the sale

was completed when delivery of possession of the lorry was given to the purchaser and that he is entitled to recover the balance of sale

consideration. The further case put forward is that the lorry originally belonged to one Rajaratnam who sold it to Balasundaram and that he (the

plaintiff) purchased the lorry form Balasundaram on 17-4-1961, that in pursuance of the sale to the defendant he made special efforts to get the

transfer of the licence in the name of the defendant, that at his own expense he brought Balasundaram, the previous owner, by his letter dated 10-

3-1962, requesting him to go over to Madras, to effect the transaction both parties had to make an application in the office of the Regional

Transport Officer for effecting the transfer in the Registration certificate book, the defendant failed to turn up, that the defendant has been making

use of the lorry ever since his purchase and that he is entitled to recover the balance of sale consideration with interest. The defence to the suit is

that the transaction of sale is not complete until the transfer of the registration certificate is effected and that the balance of consideration was

payable only at the time when the registration certificate is transferred along with the transfer of the lorry licence in the defendant''s name, that the

plaintiff has failed to effect the transfers and, therefore, the suit is premature. The further contention put forward is that at the time of the purchase,

he was not informed that the licence and the registration certificate were not in the name of the plaintiff, that on the representation that the lorry was

in good condition he had purchased the same but, soon after, found that the lorry had to be repaired and that he had spend about Rs. 10,000/- for

effecting the repairs, that the suit is not maintainable and that the plaintiff is not entitled to recover the balance of sale consideration. The trial Court

decreed the suit as prayed for. In doing so, the trial Court held that the transaction of sale of the lorry was completed on 18-8-1961, that the

letters, Exs. A.1 & B.1, were mutually executed and that the plaintiff has not committed any breach of contract. The learned judge further held that

the plaintiff has not made any fraudulent representation to the defendant in bringing about the contract of sale and that the suit is not premature and

that the lorry purchased was in the defendant''s use till went to the workshop after the plaintiff attached the suit property before judgment in the

proceedings arising out of the suit.

Then the defendant filed A. S. 46 of 1965 to the learned District Judge, Tirunelveli. The learned Judge, in reversing the judgment of the trial

Court, held that the plaintiff has not performed his party of the contract in effecting the sale of the lorry of the defendant. The learned Judge

considered that the transfer of registry was a condition precedent to the enforcement of the contract and that not having been done, the plaintiff is

not entitled to recover the balance of consideration. On the third question framed, namely, that the suit is not maintainable in view of the provisions

of the Motor Vehicles Act, the learned Judge did not consider it necessary to give any finding. Hence the plaintiff has filed the above second

appeal.

The learned counsel for the appellant contends that the motor lorry being a moveable property, the contract is completed on delivery of

possession of the lorry to the defendant and that Exs. A.1 and B.1 establish the delivery of possession of the lorry and the receipt of part

consideration for the sale transaction. A perusal of Exs. A.1 and B.1 leaves no room for any doubt that the transfer of registry is not a condition

precedent for payment of the balance of consideration. The contention of the learned counsel is that the transaction of sale having been completed

under Exs. A.1 and B.1 and the defendant having taken possession of the lorry, the defendant is bound to pay the balance of consideration. This

contention of the learned counsel is well-founded. It is true that the registration certificate has not been transferred; but the defendant has

purchased the lorry with open eyes even without looking into the registration certificate and satisfying himself that the plaintiff is the certificated

owner. The transaction of sale having been completed, the effect of not obtaining the transfer of the registration certificate will only mean that the

owner, in whose name the registration certificate stands, will be liable for any accident occurring by reason of the running of the lorry and that the

passing of title to the property does not depend upon the transfer of the certificate of registration. The learned counsel for the respondent drew my

attention to the further correspondence between the parties, viz, Exs. B.4, B.6 and B.8 in order to show that the transaction of sale is not complete

until the transfer of the registration is effected. The original contract between the parties, evidence by Exs. A.1 and B.1, governs the rights and

liabilities of the parties and the transfer of registration is not made a condition precedent under Exs. A.1 and B.1. In my view, the subsequent

correspondence cannot alter the nature of the transaction entered into between the parties. The view of the learned District Judge that the plaintiff

has not performed his part of the contract of sale, viz, that he has not effected the transfer of registration and that the present suit for recovery of

the balance of sale consideration is not maintainable, is not correct. Hence I set aside the judgment of the learned District Judge and restore the

decision of the trial Court.

It is, of course, open to the defendant to pursue his remedies against the plaintiff, if he has incurred any loss by reason of the non-transfer of the

registry. With the above observations, this second appeal is allowed. There will be no order as to costs. No leave.

Appeal allowed.