Delhi High Court
Mukesh vs Devki Nandan Joshi & Ors on 17 March, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.175/2014
Decided on : 17th March, 2015
MUKESH ...... Appellant
Through: Mr.Jitender Kumar Dhingra, Advocate.
Versus
DEVKI NANDAN JOSHI & ORS ...... Respondent
Through: Respondent No.2 in person.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant against
the judgment dated 21.03.2014 upholding the judgment and decree
dated 29.02.2012 in CS No.300/2009.
2. Briefly stated, the facts of the case are that the appellant filed
a suit for recovery of Rs.1,68,000/- with pendente lite and future
interest along with cost of the suit.
3. It was alleged by the appellant/plaintiff that he was misled
by respondent No.1, the employer/respondent No.3, to purchase a
commercial vehicle of make Tata for a total price of Rs.1,50,000/-
and the balance payment of instalments of Rs.9,824/-. The
appellant is alleged to have paid a sum of Rs.1,30,000/- initially
and the balance amount was to be paid later according to schedule
fixed between the parties.
4. It is alleged that on 06.07.2009, the vehicle was re-possessed
by the financer and on 08.07.2009, at the instance of respondent
No.1 and respondent No.3, the appellant/plaintiff paid Rs.20,000/-
and again on 11.08.2009, the appellant/plaintiff paid a sum of
Rs.10,000/- to the respondent No.1.
5. Since the appellant neither got the possession of the vehicle
nor the refund of the money, therefore, he came to issue a notice to
the respondents. The respondents refused to receive the notice
which resulted in filing of a suit for recovery. There was no prayer
with regard to the repossession of the vehicle nor could the vehicle
have been repossessed because it was taken back by the financer.
The suit was contested by the respondents.
6. The learned trial court framed the issues, permitted the
parties to adduce evidence and dismissed the suit of the appellant
holding that the appellant was not entitled to a decree for a sum of
Rs.1,68,000/-. I need not delve into the reasons which are given in
detail by the learned trial court with regard to the dismissal of the
case of the appellant/plaintiff.
7. The appellant feeling aggrieved preferred a first appeal
against the judgment and decree of rejection of the suit by the trial
court.
8. The appellate court upheld the judgment and decree passed
by the trial court and dismissed the appeal as being devoid of any
merit.
9. Still feeling dissatisfied, the present regular second appeal
has been filed.
10. I have heard the learned counsel for the appellant. He has
contended that the trial court has wrongly rejected the claim of the
appellant. For this purpose, he wanted to go into the question of
appreciation of evidence. He had also sought to place reliance on
case titled Randhir Sigh v. Gurbux Singh; 1979 WLN 170 and
Bengal Corporation Private Limited v. The Commissioners for the
Port of Calcutta; AIR 1971 Calcutta 357.
11. I have gone through both these judgments and I fail to
understand as to how both these judgments are helpful to the
appellant/plaintiff. So far as the first judgment in Randhir Singh's
case is concerned, that is a judgment delivered by the learned
single Judge of the Rajasthan High Court by way of a first appeal
where partly the decree which has been passed by the trial court
had been modified and the amount of recovery has been increased.
12. The learned counsel for the appellant has failed to
appreciate the fact that in the light of the concurrent finding of fact
of the appellant having suffered adverse order of dismissal of his
suit for recovery, the second appeal would be permissible only in
the event of a substantial question of law arising from the appeal.
The Rajasthan High Court judgment was on first appeal where the
court is empowered to re-appreciate the evidence.
13. The learned counsel for the appellant has not been able to
formulate any substantial question of law arising from the appeal.
All that has been stated be him is that the appellant/plaintiff has
been cheated by respondent Nos.1 and 3 inasmuch as they had
entered into an agreement to sell with respect to a vehicle which
they had purchased on hypothecation from a financer. They had
agreed to sell the vehicle to the appellant while as they themselves
had defaulted in making the payment to the financer because of
which the financer had repossessed the vehicle.
14. All these questions of repossession of vehicle and the money
having been paid by the appellant to respondent Nos.1 and 3 or the
said respondents failing to discharge their duties or the appellant
having been cheated are essentially questions of fact and not
question of law much less substantial questions of law. Therefore,
the present regular second appeal is totally misconceived and
accordingly the same is dismissed.
V.K. SHALI, J.
MARCH 17, 2015
dm
