Delhi High Court

Shri Hari Kishan Gupta vs The Motor & General Finance Ltd. & ... on 20 January, 2012

Author: Valmiki J. Mehta

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No. 731/2003

%                                                       20th January, 2012

SHRI HARI KISHAN GUPTA                                       ..... APPELLANT
                  Through :              Mr. B.L. Wali, Advocate.

                      versus

THE MOTOR & GENERAL FINANCE LTD. & ORS.                    .... RESPONDENTS
                 Through : None.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J. (ORAL)

1. The challenge by means of this Regular First Appeal (RFA) filed

under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 17.5.2003 dismissing the suit of the

appellant/plaintiff who had claimed various reliefs of declaration, permanent

injunction and recovery of moneys. Learned counsel for the appellant, at the

outset itself, confines the relief claimed in the appeal to a decree for money

against defendant No. 2/respondent No.2.

2. The brief facts of the case are that the appellant/plaintiff got financed

a vehicle from respondent No.1 being Tata (D) 709 Model 1996 bearing

registration No. DL-1LC-2329. The plaintiff had to pay a sum of

Rs.4,22,000/- to the respondent No.1-financing company in 34 monthly

installments of Rs.12,500/- each commencing from 22.8.1996. The

appellant/plaintiff after receiving possession of the vehicle paid certain

installments to respondent No.1. The plaintiff, thereafter, sold the vehicle to

respondent No.2/defendant No.2 on 4.2.1998. The appellant/plaintiff claims

to have sold the vehicle for Rs.3,25,000/- and is stated to have received only

Rs.50,000/-. One of the reliefs in the subject suit was, therefore, for

recovery of Rs.2,75,000/- along with interest from the buyer of the vehicle

namely the defendant No.2/respondent No.2 and the defendant Nos. 3-6 who

are alleged to have stood as guarantors for payment of balance amount of

Rs.2,75,000/-.

3. A joint written statement was filed by defendant Nos. 2-5. In the said

written statement the defence which was taken up was that the total amount

for sale of vehicle was paid to the appellant/defendant under sale receipt

dated 4.2.1998.

4. The relevant issue with respect to claim for moneys by the

appellant/plaintiff against the defendants, was issue No. 4 framed by the trial

Court, and, which reads as under:-

"4. To what amount if any the plaintiff is entitled against defendants No.2 to 6? OPP."

5. Learned counsel for the appellant has drawn my attention to the cross-

examination of defendant No.2 to show that defendant No.2 admits that

complete amount of the sale of vehicle was not paid to the

appellant/plaintiff. I may note that in the receipt, Ex.PW1/1 dated 4.2.1998,

no price is mentioned and it is only mentioned that the vehicle has been sold

to defendant No.2/respondent No.2. A reading of the cross-examination of

defendant No.2 is very instructive and conclusive against the said defendant

and which shows that the defendant No.2, admitted that he had not paid the

complete price to the appellant/plaintiff. I am reproducing the relevant

portion of the cross-examination of respondent No.2 below:-

"The transaction regarding sale purchase of the truck in question took place in the first or second month, 1998. Only one document was prepared i.e. on the letter head of Dr. Umesh Gupta, which was in the name of Gupta Nursing Home, and the amount of Rs.50,000/- was paid, which was mentioned in that document. Only one document was executed at that time, which is Ex.PW1/1, which bears my signatures at point-A. At the time of execution of this document Dr. Umesh Gupta, Sh.

Kailash Chand Gupta, Shri Narender Kr. Gupta and Sh. Lekh Raj Sharma and I were present. After execution of Ex.PW1/1, only power of attorney was executed after the accident has occurred. Vol. this power of attorney was executed on 11.3.98. The total sale consideration of the vehicle was agreed as Rs.3 lacs. It is wrong to suggest that the sale consideration agreed was Rs.3,25,000/-. It is correct that on 4.2.98 the possession of the vehicle was delivered to me. It is correct that it was agreed between Plaintiff and me that the responsibility of the vehicle upto 4.2.98 would be that of the Plaintiff and thereafter I will be responsible about this vehicle. It is wrong to suggest that I was to make balance payment of the remaining installment after 4.2.98 to the defendant No.1. Vol. infact I had given the balance payments to the Plaintiff Hari Kishan after one and a half month from 4.2.98 so I was not required to pay any installments to the defendant No.1. I had paid Rs.2,50,000/- after 1½ month from 4.2.98 to the Plaintiff. This payment was made by me in cash. No writing was done regarding this payment."

(underlining added)

A reference to the aforesaid cross-examination shows that whereas

certain amounts would have been paid to the appellant/plaintiff at the time

when the receipt, Ex.PW1/1 dated 4.2.1998 was entered, the balance

payment was to be made by defendant No.2/respondent No.2 to the finance

company and which is the balance part of the consideration. Therefore, if

this balance price is not paid by respondent No.2/defendant No.2 to the

finance company-defendant No.1/respondent No.1 then the

appellant/plaintiff will be entitled to the recovery of this balance amount

inasmuch as there is an Award against the appellant/plaintiff which has

achieved finality and which Award has been passed by the Arbitrator in

favour of the respondent No.1-finance company.