Karnataka High Court
The Manager, Sugar Motors vs The Manager Indusind Bank Ltd on 6 December, 2023
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RSA No. 431 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 431 OF 2012 (MON)
BETWEEN:
THE MANAGER, SUGAR MOTORS
DOOR NO.278, CHAITHRA ARCADE,
BANDIGOWDA LAYOUT, M.C. ROAD,
MANDYA - 571 405.
...APPELLANT
(BY SRI. ABUBACKER SHAFI, ADVOCATE)
AND:
1. THE MANAGER INDUSIND BANK LTD.,
NO.28, ABOVE FOOD WORLD,
DEVARAJA URS ROAD, DEVARAJA MOHALLA,
MYSORE - 570 001.
2. THE MANAGER
ASHOK LEYLAND FINANCE,
Digitally signed by (A DIVISION OF INDUSIND BANK),
BHAVANI BAI G
Location: High OFFICE INSIDE INDUSIND BANK,
Court of Karnataka ABOVE FOOD WORLD, NO.28,
D. DEVARAJA URS ROAD,
DEVARAJA MOHALLA, MYSORE - 560 001.
...RESPONDENTS
(R1 AND R2 - SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 01.08.2011 PASSED IN
R.A.NO.991/2010 ON THE FILE OF THE PRESIDING OFFICER OF FAST
TRACK COURT IV AT MYORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED:19.4.2010 PASSED IN
O.S.NO.1206/2007 ON THE FILE OF THE III ADDL. FIRST CIVIL
JUDGE (JR.DN) & JMFC., AT MYSORE.
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RSA No. 431 of 2012
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed challenging the judgment
and decree dated 01.08.2011 passed in R.A.No.991/2010
by the Presiding Officer of Fast Track Court-IV, Mysore.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellant is the plaintiff and the respondents are the
defendants.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for recovery of money against the
defendants contending that the plaintiff is the authorized
dealer of Honda Motor Cycle and Scooters India Pvt.
Limited and running a show room for selling all types of
two wheelers of Honda company. It is contended that the
plaintiff had provided a counter inside the Honda
Showroom at Mandya to the defendants in which the
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defendants were financing the customers who were willing
to purchase the Honda Activa vehicle through the
defendants. The defendants entered into an agreement
with Mrs. Veena W/o M.C.Shankar and got prepared the
loan papers for purchase of Honda Activa Scooter at the
plaintiff's showroom for Rs.31,411/-. In this regard, the
defendants issued delivery note dated 20.01.2005 in
favour of plaintiff requesting the plaintiff to deliver the
Honda Activa Scooter in favour of the said Mrs. Veena and
the defendants assured the plaintiff that D.D. will be
issued as early as possible. The plaintiff reposing the
confidence on the defendants and on the strength of
delivery note delivered Honda Activa in favour of
Mrs. Veena. But, even after the delivery of the vehicle on
the strength of delivery note issued by the defendants and
in spite of several requests and reminders, the defendants
have not paid the vehicle amount to the plaintiff. The
plaintiff sent a mail to the Zonal Manager of the
defendants' Bank requesting to make a payment of
Rs.31,411/- but the Zonal Manager did not reply to the
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mail. The plaintiff got issued the legal notice on
24.08.2007. The said notice was served on the defendants
on 25.08.2007. In spite of service of notice, the
defendants did not repaid the vehicle amount. Hence,
cause of action arose for the plaintiff to file a suit for
recovery of money for a sum of Rs.47,590/- with cost and
further interest @ 18% per annum.
4. The defendants filed a written statement
denying the averments made in the plaint and contended
that the plaintiffs have no locus standi to file a suit against
the defendants and it is stated that there is no privity of
contract between the plaintiff and the defendants and the
defendants have not issued delivery note as contended by
the plaintiff in the plaint. The plaintiff has got created the
said delivery note. It is contended that the plaintiff has
got concocted the delivery note by forging the documents
for unlawful gain and further contended that Smt. Veena is
not the customer of the defendants and no cause of action
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has arose for the plaintiff to file a suit. Hence, prayed to
dismiss the suit.
5. The Trial Court on the basis of the pleadings of
the parties, framed the following issues:
"1. Whether plaintiff proves that the defendant
through Ashok Leyland Finance had entered
into an Agreement with one Smt. Veena and
got prepared the loan papers for purchase of
Honda Activa Scooter and in this regard the
defendant issued delivery note dated
20/1/2005 in favour of the plaintiff, on the
basis of which the said Scooter was delivered
to Smt. Veena?
2. Whether the plaintiff is entitled to the suit
claim?
3. What order or decree?"
6. The plaintiff in order to substantiate its case,
the officer of the plaintiff is examined as P.W.1 and
examined one witness as P.W.2 who is working as S.D.A.
at RTO office and got marked 19 documents as per Ex.P.1
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to Ex.P.19. The defendants got examined its legal
Executive as DW.1 and got marked 3 documentary
evidences as Exs.D.1 to D.3. The Trial Court on the
assessment of oral and documentary evidence, answered
issue Nos.1 and 2 in the affirmative and additional issue
No.1 in the negative and issue No.3 as per the final order.
Consequently, decreed the suit of the plaintiff in part with
cost. It is ordered and decreed that the defendants are
directed to pay the suit claim of Rs.47,590/- with future
interest @ 13% per annum from the date of the suit till
realization. The defendants aggrieved by the judgment
and decree passed by the Trial Court preferred an appeal
in R.A.No.991/2010 on the file of Fast Track Court-IV,
Mysuru.
7. The First Appellate Court after hearing the
parties, framed the following points for consideration:
"1. Whether delay of 53 days in preferring the
appeal can be condoned?
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2. Whether the plaintiff proves that he has
delivered the vehicle to Veena based on the
hypothecation agreement between the
defendants and the said Veena?
3. Whether the plaintiffs proves that it is the
defendants who are liable to pay the price of
the vehicle?
4. Whether the judgment and decree passed by
the trial court is capricious, illegal and call
for interference by the appellate court?
5. What order?
8. The First Appellate Court on reassessment of
oral and documentary evidence answered point Nos.1 and
4 in the affirmative, point Nos.2 and 3 in the negative and
point No.5 as per the final order. The First Appellate Court
vide judgment dated 01.08.2011 allowed the appeal and
set aside the judgment and decree passed by the Trial
Court and consequently, dismissed the suit of the plaintiff.
The plaintiff aggrieved by the judgment and decree passed
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by the First Appellate Court in R.A.No.991/2010 has filed
this second appeal.
9. This Court admitted the appeal to consider the
following substantial question of law:
"Whether a delivery note (Ex.P1) in the
instant case create any contractual liability on
the part of the present respondents to pay the
suit claim to the present appellant herein?"
10. Heard the learned counsel for the plaintiff.
11. Though notice was issued to the respondents,
none appeared for the respondents.
12. Learned counsel for the plaintiff submits that
the plaintiff had delivered the vehicle in favour of Smt.
Veena on the basis of Ex.P.1. The defendants have
assured the plaintiff that they will pay the amount of
vehicle. On the assurance given by the defendants, the
plaintiff had delivered the vehicle in favour of Smt. Veena,
hence, he submits that the defendants are liable to pay
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the amount of vehicle delivered in favour of Smt. Veena.
He further submits that the plaintiff got issued mail to the
Zonal Manager of the defendant No.1's Bank. The Zonal
Manager had not replied to the mail. Hence, the plaintiff
got issued the legal notice calling upon the defendants to
pay the amount, but the defendants refused to pay the
amount. He submits that the First Appellate Court has
committed an error in recording the finding that there is
no privity of contract between the plaintiff and defendants,
by ignoring Ex.P.1 i.e., the delivery note issued by the
defendants to the plaintiff. He further submits that Ex.P.1
creates a contractual liability on the part of the defendants
to pay the suit claim, hence, he submits that the First
Appellate Court without properly appreciating the material
on record, has passed the impugned judgment. The
impugned judgment passed by the First Appellate Court is
arbitrary and erroneous and it is liable to be set aside,
hence, on these grounds, he prays to allow the appeal.
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13. Perused the records and considered the
submission of the learned counsel for the plaintiff.
14. SUBSTANTIAL QUESTION OF LAW:
The plaintiff in order to prove its case, examined one
Sri Girish Pai as P.W.1, he has reiterated the plaint
averments in the examination-in-chief and got marked
documents where Ex.P.1 is the delivery note; Ex.P.2 is the
R.C. Extract; Ex.P.3 is the notice got issued by the plaintiff
to the defendants; Ex.P.4 is the endorsement; Exs.P.5 to
P.9 are the delivery notes; Ex.P.10 is the statement of
extract; Ex.P.11 is the entry for demand draft; Ex.P.12 is
the receipts; Ex.P.13 is the working certificate; Ex.P.14 is
the receipt; Ex.P.15 is the price list; Exs.P.16 to P.19 are
the 'B' register extract. Plaintiff also examined Smt. K.
Usha who is working as S.D.A. at RTO Office as P.W.2 and
through P.W.2, the plaintiff got marked Exs.P.16 to P.19.
15. The legal executive of Defendant No.1 was
examined as D.W.1. He has reiterated the written
statement averments in the examination-in-chief and got
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marked 3 documents as Exs.D.1 to D.3. Ex.D.1 is the
extract from the minutes of 110th meeting of the Board of
Directors of defendant No.1-company regarding approval
for authorizing the 'authorized signatories' of the erstwhile
Ashok Leyland Finance Limited to sign as authorized
signatories of defendant No.1-Bank; Ex.D.2 is the
company petition No.1086/2002 filed by the defendant
No.1 for amalgamation between Indus Enterprises &
Finance Limited and Induslnd Bank Limited; Ex.D.3 is the
General Power of Attorney executed by Defendant No.1-
Bank in favour of D.W.1, wherein, Defendant No.1-Bank
authorized D.W.1 to do all lawful acts on behalf of the
bank as listed in Ex.D.3.
16. From the perusal of the records produced by
the plaintiff and admission of P.W.1 in the course of cross
examination that there was original RC with the plaintiff
and they have not handed over the same to the
defendants and P.W.1 has assigned the reason for not
handing over the document and by that time, the
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defendants vacated the premises given by the plaintiff for
their business purpose. The plaintiff has not produced any
report to show that the defendants have agreed to pay the
vehicle amount to the plaintiff, merely the plaintiff placing
a reliance on Ex.P.1. From perusal of Ex.P.1, it discloses
that it was a request to the plaintiff showroom to forward
the documents i.e., invoice or hypothecation agreement,
delivery challan duly acknowledged by the borrower,
duplicate keys, proof of insurance, proof of insurance
policy, registration certificate with hypothecation
agreement and further P.W.1 has admitted that none of
these documents were handed over by the plaintiff to the
defendants. The plaintiff has delivered the vehicle in
favour of Smt. Veena. She had purchased the vehicle from
the plaintiff's showroom and she had paid the part
consideration as per Ex.P.14 which discloses that Smt.
Veena has paid Rs.9,257/- to the plaintiff firm, but the
plaintiff has not produced any record to show that there is
a contract between the plaintiff and defendants. Thus
there is no privity of contract between the plaintiff and
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defendants. The plaintiff has miserably failed to establish
that merely on the basis of delivery note, it creates any
contractual liability on the part of the defendants to pay
the suit claim to the plaintiff. The First Appellate Court on
reassessment of oral and documentary evidence was
justified in passing the impugned judgment. Hence, I do
not find any grounds to interfere with the impugned
judgment.
17. In view of the above discussion, I answered
substantial question in the negative and accordingly, I
proceed to pass the following
ORDER
The appeal is dismissed.
The judgment and decree passed by the
First Appellate Court is confirmed.
No order as to the costs.
Sd/-
JUDGE
CT:SK
