HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.780 of 2014
JUDGMENT :
This Second Appeal is arising out of the judgment dated 29.04.2014 in A.S.No.438 of 2010 on the file of XIV Additional Chief Judge (FTC), City Civil Court, Hyderabad, confirming the judgment and decree dated 31.05.2010, passed in O.S.No.805 of 2001 on the file of VII Junior Civil Judge, City Civil Court, Hyderabad.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. Heard learned Counsel for the appellant as well as the learned counsel for the respondent and perused the record.
4. The appellant is the plaintiff. Originally, the suit was filed by the plaintiff against the defendant-Company for recovery of an amount of Rs.52,886-14 ps., and to grant consequential relief restraining the defendant and their men from interfering in any 2 GAC, J S.A.No.780 of 2014 manner with the possession and enjoyment of plaintiff over the Maruthi Car bearing No.AP-09-L-6500.
5. The brief averments in the plaint are that the plaintiff is a business woman and that she purchased the Maruthi Car bearing No.AP-09-L-6500 in the year 1996 under the financial assistance of the defendant-Company i.e. M/s.Kotak Mahindra Finance Ltd. It is the contention of the plaintiff that the copy of the alleged agreement has not been furnished and the other original documents are still with the defendant and were not returned to her inspite of several requests made by her. At the time of entering into agreement with the defendant, the plaintiff has paid an initial amount of Rs.51,352+Rs.10,000/- and also insurance amount of Rs.5,362/- in cash, but the defendant did not pass/issue any receipt inspite of receiving the total amount of Rs.66,714/- and it was neither credited into the plaintiff's account nor the Company paid interest for it. It is the further contention that the plaintiff has paid all the 36 instalments and discharged the debt by April, 1999, but the defendant-Company misappropriated the amount. Further, the defendant had issued a legal notice, for which, the plaintiff issued 3 GAC, J S.A.No.780 of 2014 reply notice denying the averments of the defendant-Company. Therefore, she filed the suit claiming damages against the defendant-Company to a tune of Rs.52,886-14 ps.
6. On the other hand, the defendant-Company has filed a detailed written statement contending that the amount of Rs.51,352/- paid by the plaintiff comprised of (i) the advance equated monthly instalments at the rate of Rs.8,350/- aggregating to Rs.41,750/-, (ii) an amount of Rs.5,362/- towards insurance for the vehicle for the first year and (iii) an amount of Rs.4,240/- towards service charges and denied the contention of plaintiff that she paid Rs.10,000/- in addition to the aforesaid amounts. It is further contended that the hire purchase agreement was entered by the plaintiff for payment of equated monthly instalments at the rate of Rs.8,350/-. The plaintiff issued post-dated cheques towards payment of monthly instalments, but the very first cheque was being dishonored. Further, the plaintiff has cleared the amount, but another seven cheques have been dishonored on presentation before the Bank and the hirer i.e. the plaintiff is liable to pay charges for dishonor of cheques. The recitals further disclose that 4 GAC, J S.A.No.780 of 2014 there is no question of retaining the amount of Rs.5,362/- and it is used for issuing fresh policy in the name of the plaintiff, as initially, the car was purchased in the name of K.Ratna Kumari of Visakhapatnam and subsequently transferred on the name of plaintiff. The plaintiff has not cleared an amount of Rs.16,262/-, which is liable to be paid to the Company, and therefore, prayed to dismiss the suit with costs.
7. Basing on the pleadings, the trial Court has framed the following issues for trial :
"1. Whether the plaintiff is entitled to recover the amount as prayed for ?
2. Whether the notice dt.17-08-2000 can be declared as null and void and unenforceable ?
3. Whether the plaintiff is entitled for perpetual injunction as prayed for ?
4. To what relief ?"
8. During the course of trial, on behalf of the plaintiff, PW.1 was examined and Exs.A-1 to A-11 were marked. On behalf of the defendant, DW.1 was examined.
9. On considering the oral and documentary evidence on record, the trial Court has dismissed the suit with a finding that the defendant had issued notice dated 17.08.2000 by stating that the 5 GAC, J S.A.No.780 of 2014 plaintiff is liable to pay an amount of Rs.30,717/-, failing which, the defendant would take legal action and the vehicle will be seized. It is further observed that PW-1 also admitted that some of the cheques issued by the plaintiff were dishonored. It is also the specific finding of the trial Court that in a suit for perpetual injunction, the burden lies on the plaintiff to prove her case, but the plaintiff failed to examine herself and though PW-1, who is the brother of the plaintiff, was examined as a GPA holder, he cannot depose the facts which were not in his personal knowledge and that the plaintiff failed to establish her case, and therefore, not entitled for perpetual injunction.
10. Being aggrieved by the judgment and decree of the trial Court, the plaintiff has filed an appeal in A.S.No.438 of 2010 on the file of XIV Additional Chief Judge, City Civil Court, Hyderabad.
11. The first appellate Court, after hearing the appellant and considering the material on record, has framed the following points for consideration:
6
GAC, J S.A.No.780 of 2014 "1. Whether the plaintiff is entitled to suit claim as prayed for ?
2. Whether the notice dated 17-08-2000 issued by the defendant Company isnull and void and not enforceable under law ?
3. Whether the plaintiff is entitled to perpetual injunction as prayed for ?
12. On considering the rival contentions of the parties and material on record, the first appellate Court has dismissed the appeal confirming the judgment of the trial Court with a specific finding that the cheques issued by the plaintiff were dishonored and there is delay in payment of instalment amounts, and therefore, the plaintiff is not entitled for perpetual injunction.
13. Being aggrieved by the judgment of the first appellate Court, this second appeal is filed by the plaintiff raising the following substantial questions of law along with the grounds of appeal:
"A) Both the Courts below erroneously held that the evidence of GPA is not tenable on the failure of the Plaintiff not entering the witness box.
B) Both the Courts below failed to see that the law of Contract stands determined when the hirer discharge her liability as admitted by D.W.1.
C) These questions are answered in catena of judgments of Apex Court, as evident from a recent Judgment reported in 2014 (4) SCC Page-693 at paras 18 & 19 which is:7
GAC, J S.A.No.780 of 2014 The 1st Appellate Court also committed grave error by declaring the enquiry as non est.........There is no prohibition on the High Court to entertain the Second Appeal, even on facts in exceptional circumstances, where factual findings are found to be perverse.
D) Total misreading of evidence, held gives rise to question of Law, as held in judgment of Apex Court reported in 2013 (9) SCC Page:152."
14. On perusal of the substantial questions of law, it is evident that they are on the findings of factual aspects by both the Courts below but not on law. Both the Courts have concurrently given a finding that the plaintiff is not entitled for injunction against the defendant-Company in view of the dishonor of cheques which are issued by the plaintiff. It is also the specific admission of the plaintiff that the cheques issued by her were dishonored and she had cleared the amount at a later stage.
15. One of the substantial questions of law raised at ground 'C' is that the Courts below ought to have followed the judgment of Hon'ble Supreme Court in Rajasthan State Transport 8 GAC, J S.A.No.780 of 2014 Corporation & Another v. Bajrang Lal1. In the said judgment, their Lordships have held as under :
"The appellate court committed a grave error by declaring the enquiry as non-est. The termination order as a consequence thereof, stood vitiated though there is no reference to any material fact on the basis of which such a conclusion was reached. The finding that copy of the documents was not supplied to the respondent/plaintiff, though there is nothing on record to show that how the documents were relied upon and how they were relevant to the controversy involved, whether those documents had been relied upon by the enquiry officer and how any prejudice had been caused by non-supply of those documents, is therefore without any basis or evidence. When the matter reached the High Court in Second Appeal, the High Court refused to examine the issue at all by merely observing that no substantial question of law was involved and the findings of fact, however erroneous, cannot be disturbed in Second Appeal.
With all respect, we do not agree with such a conclusion reached by the High Court, as Second Appeal, in exceptional circumstances, can be entertained on pure questions of fact. There is no prohibition for the High Court to entertain the Second Appeal even on question of fact where factual findings are found to be perverse."
16. There is no dispute with regard to the ratio laid down by the Apex Court in the above said judgment, but it is not applicable to the facts and circumstances of the present case. In the present case, the trial Court and the first appellate Court have properly framed the issues as well as points for determination respectively and there 1 2014 (4) SCC 693 9 GAC, J S.A.No.780 of 2014 is no error in the findings of factual aspects by both the Courts below. Admittedly, the plaintiff herself has not entered the witness box in the present case and her brother was examined as GPA holder. The notice dated 17.08.2000 itself speaks that the defendant demanded the plaintiff for recovery of amount and in case of default, legal action will be taken against her. After receiving the said notice, the suit is filed by the plaintiff for recovery of amount for damages against the defendant-Company contending that all the 36 instalments were being paid by her. It is the specific admission before the Courts below that the 4 cheques, dated 10.05.1996, 10.08.1996, 10.11.1996 and 10.12.1996, issued by the plaintiff, each for an amount of Rs.8,350/-, were dishonored, but later the plaintiff had paid the said amount. It is an admitted fact that in case of dishonor of cheques, Banks will impose penalty charges for each and every cheques dishonored.
17. Further, there is limited scope under Section 100 of CPC while dealing with the appeals by the High Courts. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, then only, the Court can interfere with 10 GAC, J S.A.No.780 of 2014 the orders of the Courts below. On perusal of the entire material, this Court is of the considered view that the orders of the Courts below are not perverse and there is no misreading of evidence, and therefore, it is not proper to interfere with the concurrent fact findings of the Courts below, in the absence of substantial question of law. Therefore, the Second Appeal deserves to be dismissed.
18. In the result, the Second Appeal is dismissed at the stage of admission, confirming the judgment dated 29.04.2014 in A.S.No.438 of 2010 on the file of XIV Additional Chief Judge (FTC), City Civil Court, Hyderabad. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 18.11.2022 ajr