Kerala High Court
Lakshmi Devi vs A.R.Varghese on 16 February, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
RFA NO.645 OF 2005
AGAINST THE JUDGMENT OS 271/2001 OF PRINCIPAL SUB COURT,
IRINJALAKUDA
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APPELLANTS/DEFENDANTS 1 TO 4/COUNTER CLAIMANTS:
1 LAKSHMI DEVI,
WIFE OF LATE V.K.JAYAKUMAR AND DAUGHTER OF,
POOTHAMBILLI INDIRADEVI, AGED 43, 'LAKSHMI NIVAS',
NJARAKKAL VILLAGE AND MURIYIL, KOCHI TALUK.
2 RADHIKA, DAUGHTER OF LATE V.K.JAYAKUMAR,
AGED 20, 'LAKSHMI NIVAS', NJARAKKAL VILLAGE AND
MURIYIL, KOCHI TALUK.
3 PARVATHY, DAUGHTER OF LATE V.K.JAYAKUMAR,
AGED 18, 'LAKSHMI NIVAS', NJARAKKAL VILLAGE AND
MURIYIL, KOCHI TALUK.
4 MINOR INDUJA,
DAUGHTER OF LATE V.K.JAYAKUMAR, AGED 14, 'LAKSHMI
NIVAS', NJARAKKAL VILLAGE AND MURIYIL, KOCHI TALUK.
(MINOR 4TH APPELLANT REPRESENTED BY HER MOTHER AND
NATURAL GUARDIAN LAKSHMI DEVI, THE FIRST APPELLANT)
BY ADV SRI.K.C.CHARLES
RESPONDENTS/PLAINTIFGF AND 5TH DEFENDANT:
1 A.R.VARGHESE
SON OF ATTUPURAM RAPHEL, CHENGALUR VILLAGE,
MUKUNDAPURAM TALUK, REPRSENTED BY POWER OF ATTORNEY
HOLDER, STALIN VARGHESE, SON OF ATTUPURAM VARGHESE.
RFA NO. 645 OF 2005 -2-
2 MUTHUT LEASING AND FINANCE LIMITED,
31/1388 A, 2ND FLOOR, PREETHI BUILDING, VYTTILA,
COCHIN, REPRESENTED BY MANAGING DIRECTOR.
BY ADV SRI.R.S.KALKURA
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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R.F.A. No.645 of 2005
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Dated this the 16th day of February, 2024
J U D G M E N T
The decree in a suit for money is under challenge
by defendants 1 to 4.
2. Defendants 1 to 4 are the legal heirs of one Dr.
Jayakumar. The 5th defendant is a financier. The
plaintiff purchased a Tata Safari Car by availing
finance from the 5th defendant. Ext.B11 dated 18.07.1998
is the hire purchase agreement. As per Ext.B11, the
facility availed by the 5 th defendant is to be repaid
in 36 instalments of ` 30,500/- each. The plaintiff
could pay only five instalments. On 11.02.1999 he sold
the vehicle to Dr. Jayakumar. Thereafter Dr. Jayakumar
paid only nine instalments. On 03.09.1999 he sold the
vehicle to one Narayanankutty. Narayanankutty defaulted
in payment of the intalments. Thereupon the fifth
defendant issued Ext.B14 notice dated 14.11.2000 to the
plaintiff. The plaintiff paid the then defaulted
instalments amounting to ` 3,01,604/-. The suit was
instituted thereafter seeking the following reliefs:-
(i) To direct defendants 1 to 4 to pay the balance
outstanding to the 5th defendant financier.
(ii) For a decree against defendants 1 to 4 for
realisation of ` 3,01,604/-.
(iii) On default of defendants 1 to 4 to pay the balance
outstanding to the 5th defendant, to permit the plaintiff to pay
the same and recover it from defendants 1 to 4.
3. Defendants 1 to 4 filed written statement
contending that, their predecessor Dr. Jayakumar had not
purchased the vehicle. Due to financial difficulties the
plaintiff was unable to pay the instalments. On the
intervention of a broker known to Dr.Jayakumar, the
possession of the vehicle was handed over to Dr.
Jayakumar on an understanding that he was to pay few
instalments and that the plaintiff would repay the same
and take back the vehicle. He paid 9 instalments
totalling to ` 2,74,500/-. Subsequently, on 03.09.1999,
the plaintiff through his son took back the vehicle on
paying ` 1,50,000/-. Balance amount of ` 1,24,500/- is
due to Dr.Jayakumar. A counter claim was raised for the
said amount. The suit is liable to be dismissed and the
counter claim decreed, it was contended.
4. In the meanwhile, the 5 th defendant financier had
filed a suit against the plaintiff herein as OS 222/2001
for recovery of the amounts due under Ext.B11 hire
purchase agreement. Both suits were jointly tried.
5. The trial court granted a decree allowing the
plaintiff to realise an amount of ` 3,01,604/- from the
assets devolved on defendants 1 to 4 from Dr. Jayakumar.
The plaintiff was also granted a decree allowing him to
realise the balance amounts due under the hire purchase
agreement, from the legal heirs of Dr. Jayakumar viz.
defendants 1 to 4 herein. The counter claim was
dismissed.
6. I have heard learned counsel on either side.
7. The points that arise for determination are :-
(i) Is the finding of the trial court that the arrangement
between the plaintiff and Dr.Jayakumar was a transaction of
sale, sustainable on the evidence ?
(ii) Is the finding of the trial court that Dr. Jayakumar
and as his legal heirs-defendants 1 to 4, are liable for payment
of amounts due to the fifth defendant financier, sustainable ?
(iii) Does the decree and judgment of the trial court
warrant any interference ?
8. The plaintiff alleges that the vehicle was sold
to Dr.Jayakumar on 11.02.1999 with the liability to wipe
off the debt due to the fifth defendant financier. After
paying nine instalments Dr. Jayakumar sold the vehicle
to one Narayanankutty. Narayanankutty committed default.
Thereupon the plaintiff is being proceeded against by
the financier. Since Dr.Jayakumar to whom the plaintiff
sold the vehicle with the liability is no more, his
legal heirs are bound to indemnify the plaintiff, is the
case in sum and substance. Defendants 1 to 4 disputed
the liability alleging that though Dr. Jayakumar was
handed over possession of the vehicle with the liability
to pay instalments due to the fifth defendant financier,
it was only a temporary arrangement. When the amounts
paid by Dr.Jayakumar is repaid by the plaintiff, the
vehicle was to be restored. There was no sale of the
vehicle as such. Subsequently the vehicle was taken back
by the plaintiff on payment of ` 1, 50,000/-. Further
amount of ` 1,24,500/- remained to be paid. Therefore,
Dr. Jayakumar or his legal heirs viz. defendants 1 to 4
have no liability towards the plaintiff or the
financier, is the defence. An amount of ` 1,24,500/- is
still outstanding to Dr.Jayakumar is the claim.
9. Irrespective of as to the nature of the
transaction, that possession of the vehicle with the
liability to pay the instalments was transferred to Dr.
Jayakumar, is not in dispute. That pursuant to such
transfer, Dr. Jayakumar had paid nine instalments
directly to the financier is also not in dispute.
Defendants 1 to 4 allege that the vehicle was taken back
by the plaintiff on payment of ` 1,50,000/- and that
balance amount of ` 1,24,500/- is outstanding. Therefore
what needs to be proved is that the plaintiff had taken
back the vehicle. There is no document produced
evidencing that the vehicle was returned/taken back
possession of by the plaintiff from Dr. Jayakumar. There
is no evidence to show the payment of ` 1,50,000/- as
claimed by the defendants. According to the defendants
the vehicle was got returned by the plaintiff in the
presence of one Kunjumon who is a broker, and the
plaintiff's son who is the power of attorney holder of
the plaintiff. However, they have not chosen to examine
the said Kunjumon to prove such incident. Though the
learned counsel for defendants 1 to 4 would argue that
the burden of proof lies on the plaintiff, on the facts
as noticed above, when defendants pleaded that the
plaintiff had repossessed the vehicle on payment of
` 1,50,000/-, the burden is on them to prove such
incident. There is total lack of evidence to support the
defence claim.
10. Incidentally, the evidence on record with
regard to the sale of the vehicle by the plaintiff to
Dr. Jayakumar could be considered. Exts.B1 to B4
produced by the defendants are blank signed form for
transfer of ownership, insurance etc., which were
admittedly given by the plaintiff to Dr. Jayakumar at
the time of transfer. If there was no intention to
transfer, such transfer forms would not have been given
by the plaintiff to Dr. Jayakumar. Even though the
defendants allege that the vehicle was regained
possession off by the plaintiff from Dr. Jayakumar,
Exts.B1 to B4 documents are still with the defendants.
If there was such repossessing of the vehicle and the
transaction between the plaintiff and Dr. Jayakumar was
not intended as a sale, then necessarily Exts.B1 to B4
documents would have been taken back by the plaintiff.
This is a circumstance suggesting that the parties
intended a transfer of the vehicle.
11. The learned counsel for the appellants would
vehemently contend that the documents relied on by the
plaintiff to prove the alleged transfer of the vehicle
by Dr. Jayakumar to Narayanankutty are only photostat
copies which could not be admitted or relied in
evidence.
12. Ext.A1 is the copy of the agreement between
Dr.Jayakumar and Narayanankutty. Ext.A2 is the copy of
the complaint given by Dr. Jayakumar to Njarakkal Police
Station. DW1 admitted that the handwriting in Ext.A2 is
that of her husband Dr.Jayakumar. Ext.X1 is the
certified copy of a petition register kept in the
Njarakkal Police Station. PW3 is the police constable
working there. There is an entry that Dr. Jayakumar had
preferred a complaint to the Njarakkal Police Station
against Narayanankutty in respect of vehicle in question
alleging transfer by him to Narayanankutty on the basis
of an agreement and that Narayanankutty committed
default in payment of the instalments payable to the
financier. Exts.X4(a) and X4(b) are copies of Exts.A1
and A2 produced by the Sub Inspector of Police,
Mannarkkad stating to be documents produced by Dr.
Jayakumar along with the complaint since Narayanankutty
was a resident at Mannarkkad. DW1 has admitted that the
handwriting in Ext.X4(a) and X4(b) are similar to that
of her husband. PW2 is an attestor to Ext.A1. He has
identified his signature therein. He has also vouched to
the transaction. Ext.A7 is the statement given by Dr.
Jayakumar under Section 161 of the Cr.P.C. Ext.A6 is the
FIR. PW3, the Police Constable, has deposed that Ext.A7
was recorded in his handwriting and that the statement
was given by Dr. Jayakumar. All these lend credence to
the plaintiff's contention with regard to transfer of
vehicle to Dr. Jayakumar.
13. The transfer of the vehicle to Jayakumar being
on 11.02.1999, if the plaintiff is required to pay any
of the instalments to the fifth defendant subsequent
thereto, he is entitled to have the same realised from
Dr. Jayakumar. ` 3,01,604/- which is claimed in relief
No.2 are the payments made by the plaintiff for the
defaulted amounts after the transfer to Dr. Jayakumar.
As regards the further liability due to the financier,
in the light of the privity of contract between the
plaintiff and the 5th defendant financier, the plaintiff
is liable to pay the amount. As held by the trial court,
the plaintiff though bound to pay such amount, he is
entitled to recover it from defendants 1 to 4 as the
legal heirs of Dr. Jayakumar.
14. The learned counsel for the appellants would
argue that, without defendants 1 to 4 herein being made
parties in O.S.222/2001 which is the suit filed by the
financier, they could not be made liable for the amount
decreed therein. Even the rate of interest granted is
excessive and arbitrary, it is argued. The appellants
cannot be made liable for the same, it is argued. As
noticed earlier, both the suits were jointly tried. In
O.S. 222/2001 it has been held that the plaintiff is
entitled to recover the balance instalments amounting to
` 5,29,060/- with interest at the rate of 20%. The first
defendant, on payment was permitted to recover the same
from the assets of Dr. Jayakumar which are inherited by
defendants 1 to 4. The suits having been jointly tried
it cannot be said that these defendants did not have
opportunity to challenge on the quantum, interest etc. A
decree having been passed against defendants 1 to 4 they
had the right to challenge the decree in appeal.
However, they have not chosen to do so. Therefore, the
decree having become final, the argument of the learned
counsel has no force.
15. Defendants 1 to 4 have filed a counter claim
for realisation of ` 1,24,500/-. According to the
defendants an amount of ` 2,74,000/- was remitted by Dr.
Jayakumar towards the instalments that fell due after
taking possession of the vehicle from the plaintiff. At
the time of taking back the vehicle, the said amount of
` 2,74,500/- was agreed to be paid to Dr. Jayakumar.
Out of the same an amount of ` 1,50,000/- was paid and
the balance was agreed to pay immediately. However, the
said amount was not paid. It is for the said balance
amount that the counter claim was raised.
16. As has been noticed earlier, there is no
evidence that the plaintiff had taken back the vehicle
from Dr. Jayakumar on payment of ` 1,50,000/- or on the
agreement to pay a further amount of ` 2,74,500/-. On
such finding, the claim of defendants 1 to 4 for the
alleged balance amount thereunder, cannot be sustained.
The trial court was right in having dismissed the
counter claim.
On the above discussions, I hold that the decree
and judgment of the trial court warrants no
interference.
Resultantly, the appeal fails and is dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
PETITIONER EXHIBITS
EXHIBIT B23 ORIGINAL OF THE CERTIFICATE DATED 31.08.2019
ISSUED BY THE PLAINTIFF IN O.S.222 OF
2001/2ND RESPONDENT IN R.F.A. 122 OF 2005.
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