: 1 : S-2537-92-Judgement=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2537 OF 1992 Arvind Ambalal Patel Vrinda, 15, Podar Road, Santacruz (W), Bombay – 400 054. .. Plaintiff v/s. 1. Suman J. Patel 2nd Floor, Mayfair Gardens, Little Gibbs Road, Malabar Hill, Bombay – 400 006. 2. Nesco Limited NSE Estate, Goregaon (E), Bombay – 400 063 ..Defendants ......... Mr. K.D. Shah for the plaintiff Mr. U.J. Makhija i/b M.G. Mimani for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 14th MARCH, 2011 ORAL JUDGMENT : 1. The present suit pertains to Car bearing Registration No. MMH 9289 of Mercedes Benz 240D make (hereinafter referred as the said Car). The suit is filed by the plaintiff for various reliefs. A declaration that the plaintiff is the owner of the said car is sought by prayer clause (a). By prayer clause (b) plaintiff seeks a declaration that the defendants have no right in said car. By prayer clause (c) plaintiff has sought possession : 2 : S-2537-92-Judgement=.sxw of the said car. By prayer clause (d) plaintiff wants a money decree in the sum of Rs.2,32,800/- along with interest. By payer clause (e), plaintiff wants an order against defendants in the sum of Rs.24,000/- per month by way of compensation along with the interest @ 18% per annum on account of alleged wrongful use and / or possession of the car. By prayer clause e(i) plaintiff wants money decree in the sum of Rs. 9,11,721/- along with interest and further interest from 1st July, 2008 till payment or realization on Rs.8,77,285/-. Plaintiff of course has prayed for costs of the suit. 2. Facts necessary for the disposal of this suit are as under. 3. The plaintiff claims that he is the owner of the said car and in support of his contention that he is the owner of the said car, he has placed before the Court documents including invoices issued by Mercedes Benz at Exh.A, papers relating to import of the said Car at Exh.C and D, Registration Book of the car in favour of the plaintiff at Exh.E and F. According to the plaintiff the said car was given to defendant no.1 for his personal use free of charge. According to plaintiff on account of retirement of his father, he needed the said car and that is why by letter dated 14th October, 1991 at Exh.K colly. plaintiff requested defendant no.1 to return the car to the plaintiff. The said letter was replied to by defendant no.2 being letter dated 21st October, 1991. By : 3 : S-2537-92-Judgement=.sxw the said reply, defendant no.2 disputed the claim of the plaintiff and denied the allegations in the said letter dated 14th October, 1991. In reply to this letter, plaintiff sent another letter and maintained its earlier stand. After this correspondence, the plaintiff instituted this suit on 19th August, 1992 for the aforesaid reliefs. It is noted that certain developments took place as regards appointment of the Court Receiver in respect of the said car, possession of the same being handed over to defendant no.1. Defendant no.1 enjoyed the said car as an agent of the Court Receiver and ultimately the said car came in the hands of plaintiff on 8th January, 2005 under the orders of the Court. According to plaintiff after getting the car in January, 2005 from defendant no.1, he got it examined from M/s. Sanghi Motors and estimate as regards the repairs of the car was given to the tune of Rs.61,000/-. According to the plaintiff for financial reasons and his busy schedule plaintiff could not carry out the repairs and that no repairs were carried out. One more estimate was obtained which indicated that a sum of Rs.8,20,000/- would be required for repairs. That happened in 2006. Third estimate was obtained from M/s. Sanghi Motors in June, 2007. According to plaintiff car was thereafter repaired by spending a sum of Rs.8,77,285/- and that is why at a later point of time the plaint came to be amended and the relief as regards recovery of Rs.8,77,285/- and interest thereon was added. : 4 : S-2537-92-Judgement=.sxw 4. The developments as regards the appointment of the Court Receiver upto plaintiff getting back the car are as under. The Receiver, High Court Bombay was appointed by order dated 15th February, 1996. The defendant no1. was appointed as the agent of the Court Receiver. Defendant no.1 was directed to pay a sum of Rs.3,500/- per month by way of royalty. On 16th October, 1996 the defendants expressed the desire to return the car. Defendants informed the plaintiff that car required repairs and the car was not inspected by any garage. Receiver’s Report was submitted on 11th October, 2004. By order dated 30th November, 2004, the Court ordered defendant no.1 to return of the car to the plaintiff. The plaintiff instituted Appeal (L) No. 851 of 2004 against order dated 30th November, 2004 and took out the notice of motion in the said appeal. The said appeal came before the learned Vacation Judge who by his order dated 27th December, 2004 disposed of the said appeal by passing an order. In the said appeal, the possession of the car was allowed to be taken by the plaintiff without prejudice to his rights and contentions as regards the car needing repairs. By the said order, plaintiff was permitted to take the possession of the car and carry out necessary repairs. Some arguments have been advanced by learned Counsel on both sides as to the effect of this order dated 27th December, 2004. The fact remains that pursuant to this order, the car came back in the hands of the plaintiff on 8th January, 2005 and thereafter the developments as regards the repairs of the car took place as stated : 5 : S-2537-92-Judgement=.sxw earlier. 5. On account of the heavy repairs, plaintiff was required to amend the plaint and pray for compensation as set out in prayer clause E(i). 6. It is to be noted that the suit was initially filed against defendant no.1 Mr. Sumant J. Patel and defendant No.2 namely Indabrator Ltd. On account of change of name of defendant no.2 to Nesco Ltd. amendment was carried out. In substance, as of today, defendant no.2 is Nesco Ltd. It appears that defendant no.1 used the said car to attend to guests of defendant no.2 and that is how defendant no.2 is also joined as a party defendant. In the plaint there is a specific case that car was given to defendant no.1 by the plaintiff at the instance of the plaintiff’s father Mr. Arvind Patel and no specific averments are directed against defendant no.2. 7. The defendants filed a common written statement. It is the stand of the defendants that the said car was given to defendant no.1 in lieu of defendant no.1 allowing plaintiff to use the flat situate at Kamla Niwas at Chawpaty. It is also the stand of the defendants that the flat at Worli in Poonam Apartment was sold to the plaintiff in the year 1977 at a concessional rate of Rs.1,34,000/-. It is also the stand of the defendants that the car was imported by the plaintiff for the benefit of defendant no. : 6 : S-2537-92-Judgement=.sxw 1 and it was allowed to be used by defendant no.1 in lieu of the premises at Kamla Niwas at Chowpaty and in lieu of sale of flat in Poonam Apartment at a nominal price. According to the defendants, plaintiff was concerned with M/s. Indo American Industries and Ampson Plastic Pvt. Ltd. According to the defendants New Standard Engineering Company had filed the suit in the Small Causes Court at Bombay being Suit No. 141/482 of 1992 for recovery of the premises at Goregaon owned by New Standard Engineering Co. and on account of this suit, the plaintiff has instituted the present suit for recovery of the said car. According to the defendants, defendant no.2 has been paying taxes and outgoings in respect of the said car. Defendants have denied their liability to pay damages for the wrongful use of the said car. It is to be noted that there is no written statement filed after the stage when the plaintiff took out notice of motion for appointment of the Court Receiver, till the averments in the plaint as regards repairs carried out by the plaintiff through M/s. Sanghi Motors and claim of the plaintiff for repairs charges has put up in prayer clause (e-i). 8. On the basis of the aforesaid pleadings, issues came to be framed on 4th February, 2009 and they are as under. “(i) Does the plaintiff prove that he is the owner of the suit car bearing registration No. MMH-9289 ? : 7 : S-2537-92-Judgement=.sxw (ii) Does the plaintiff prove that he was required to carry out repairs to get the car in running condition and as such was required to spend Rs.8,77,285/- ? (iii) If the answer to issue no.2 is in the affirmative, is the plaintiff entitled to recover from the defendant Rs.9,11,721/- along with interest at the rate of 12% per annum on Rs.8,77,285/- from 01.07.2008 till realization ? (iv) Do the defendants prove that the suit car was given by the plaintiff to the defendants for permanent and exclusive use and for that had passed on the consideration as set out in paragraph 3(c) and 3(e) of the written statement ? (v) Do the defendants prove that the suit is barred by period of limitation ? (vi) Is the plaintiff entitled to mesne profitss ? (vii) What order ?" My findings on the above issues are as follows. (i) Issue No. (i) - In the affirmative (ii) Issue No. (ii) - In the affirmative (iii) Issue No.(iii) - In the negative (iv) Issue No.(iv) - In the negative (v) Issue No. (v) - In the negative (vi) Issue No. (vi) - In the negative (vii) Issue No.(vii) - As per final order : 8 : S-2537-92-Judgement=.sxw 9. At the stage of recording of evidence, plaintiff Mr. Arvind A. Patel gave evidence as PW-1. Mr. Osborne Fernandes, Manager of M/s. Sanghi Motors and Mr. Satish Bhadwilkar, employee of M/s. Sanghi Motors were examined as PW-2 and PW-3 respectively. No other witness was examined on behalf of the plaintiff. No witness whatsoever has been examined on behalf of the defendants. 10. The plaintiff has relied upon number of documents and the important document having bearing on the dispute before the Court are as follows. Invoice raised by Mercedes Benz in favour of plaintiff at Exh.A, papers relating to import of the said car by the plaintiff are at Exh.C and D, Registration Book of the said car in favour of the plaintiff is at Exh.E and F. Letter dated 14th October, 1991 sent by the plaintiff to defendant no.1 demanding the car reply thereto by defendant no.2 and rejoinder thereto are at Exh.’K’ (colly.), three invoices dated 28th November, 2007, 28th May, 2008 and 30th June, 2008 raised by M/s. Sanghi Motors are at Exh.’S’ colly. The plaintiff has produced as many as eight receipts issued by M/s. Sanghi Motors for having paid different amounts from time to time. Those receipts are at Exh.’R’. The plaintiff wanted to rely upon the photographs to show the condition of the car when the car was taken to M/s. Sanghi Motors. The said photographs are at Exh.T. : 9 : S-2537-92-Judgement=.sxw 11. Issue No.I and Issue No. IV :- Issue no. I pertains to the claim of the plaintiff that he is the owner of the said car whereas issue no. IV pertains to the stand of the defendants that the car was given by the plaintiff to defendant no.1 for permanent and exclusive use and for that purpose consideration was passed on as set out in para 3C and 3E of the written statement. 12. I have heard learned Counsel on both sides. The documents relied upon by the plaintiff at Exhs. A, C, D, E and F clearly indicate that the car was owned by the plaintiff at the time when the car was put in the custody of defendant no.1. The plaintiff has placed before the Court appropriate evidence in support of the stand of the plaintiff that the car was owned by the plaintiff. So far as the stand of the defendants that the car was given to defendants for permanent and exclusive use, it must be mentioned that except giving suggestions to Arvind Patel PW-1 about the stand of the defendants that the car was given to defendant no.1 for use in lieu of the use of the premises at Kamala Apartment at Chowpaty by the plaintiff, free of charge and sale of the flat at Poonam Apartment, Worli for concessional price, there is no evidence placed in support of this stand. In my view, putting certain suggestions to the plaintiff to put up the defence was not sufficient and it was necessary for the defendants to give adequate evidence by examining appropriate : 10 : S-2537-92-Judgement=.sxw witnesses as regards the circumstances under which the two premises mentioned aforesaid were given to the plaintiff. In the absence of said evidence, the stand of the defendants that the car was given to defendant no.1 for permanent and exclusive use, cannot be accepted. In view of the above, issue no.I as regards ownership of the car will have to be answered in favour of the plaintiff and according issue no.I is answered in the affirmative. So far as issue no.IV is concerned, the defendants have failed to prove that the said car was given to defendant no.1 for permanent and exclusive use and accordingly issue no.IV is answered in the negative. 13. Issue No. V :- Defendants had contended that the suit is barred by the period of limitation. It must be mentioned that this issue was not taken to its logical end by the defendants. The plaintiff had by letter dated 14th October, 1991 at Exh.K colly. called upon the defendants to handover the possession of the said car. As the car was not returned to the plaintiff, the plaintiff instituted the suit in the year 1992. Hence, institution of the suit for a declaration that the plaintiff is the owner of the said car was filed within the period of limitation. So far as the question of recovery of repair charges from the defendants, the plaint came to be amended pursuant to the order passed by this Court on 11th November, 2008. The said amendment shall relate back to the date of the suit. Nothing could be pointed out that the said amendment would : 11 : S-2537-92-Judgement=.sxw operate prospectively. Consequently, issue no.V is answered in the negative. 14. Issue No.VI :- I now turn to issue no.VI, which relates to demand of the plaintiff for mesne profits. This issue came to be framed so as to cover prayer clauses (d) and (e). The plaintiff has prayed for a money decree in the sum of Rs.2,32,800/- being the compensation for the unauthorized use of the said car by the plaintiff from the date of the notice i.e. 14th October, 1991 till the filing of the suit as per prayer clause (d). This figure of Rs.2,32,800/- has been arrived at by calculating monthly compensation of Rs.24,000/-. The claim of the plaintiff for a sum of Rs.24,000/- per month is based on the allegation that after the plaintiff issued letter dated 14th October, 1991 at Exh.K colly. and called upon the defendants to surrender the car, defendants did not surrender the car and continued to use the same. According to plaintiff, this amounted to illegal user of the car as the bailment created in favour of the defendants came to an end and, therefore, the defendants had no authority to retain the car with them and that is how the claim of monthly compensation of Rs.24,000/- is made. 15. Learned Counsel Mr. Shah for plaintiff had submitted that the plaintiff has made out a case of illegal use of car by defendants and as such considering the evidence of Record the plaintiff’s claim in terms of : 12 : S-2537-92-Judgement=.sxw prayer clause (d) should be granted. 16. Learned Counsel Mr. Makhija for defendant no.1 submitted that the plaintiff has not given evidence to support the claim of illegal user and the demand at the rate of Rs.24,000/- per month. According to him it was necessary for the plaintiff to give cogent evidence as to how he is entitled to get Rs.24,000/- per month. He further submitted that the claim of the plaintiff should be rejected. 17. The facts of the case do show that plaintiff permitted defendant no.1 to use the car. The demand made by the plaintiff by letter dated 14th October, 1991 had the effect of terminating the bailment created in favour of defendant no.1. The use of the car by defendant no.1 thereafter would be in violation of terms of bailment. The claim of plaintiff is founded on the basis that said use of car after 14th October, 1991 was illegal. 18. The Principle on which the plaintiff has claimed compensation is tenable. The question is whether the plaintiff is entitled to get Rs. 24,000/- or any part thereof per month as claimed. 19. After having gone through the evidence of Arvind Patel PW-1, I am inclined to observe that the plaintiff has not placed before the Court any : 13 : S-2537-92-Judgement=.sxw evidence whatsoever justifying this demand of Rs.24,000/- per month by way of compensation for the illegal use. Except reiterating this stand in the examination-in-chief that the plaintiff is entitled to receive Rs. 24,000/- per month, there is no evidence whatsoever. In my view, it was the prime duty of the plaintiff to place before the Court evidence to show that he was subjected to a monetary loss to the extent of Rs.24,000/- per month and that made him to claim the said amount by way of compensation in terms of prayer clause (d). 20. In my view, bare assertion in the plaint and in the evidence that the plaintiff is entitled to receive Rs.24,000/- per month by way of compensation is not sufficient. It was necessary for the plaintiff to place evidence to show that he would have got a sum of Rs.24,000/- if the car was given to somebody else on hire. In my view, the plaintiff’s bare word cannot be accepted to justify the demand of Rs.24,000/- per month. As such the claim of the plaintiff in terms of prayer clause (d) cannot be granted. 21. Second part of the recovery of monies from the defendants @ Rs. 24,000/- is covered by prayer clause (e). At the relevant time, when the suit came to be filed, the car was not with the plaintiff and the plaintiff wanted to apply for mesne profits by taking into consideration the fact that in future the car would be handed over to the defendants and the : 14 : S-2537-92-Judgement=.sxw plaintiff would be able to claim mesne profit @ Rs.24,000/- per month from the date of filing of the suit till the car is put in possession of the defendants. 22. At this juncture itself, it would be convenient to discuss as to how the possession of the car came back to the plaintiff. I have already indicated that on the date of the filing of the suit, the car was in possession of the defendant no.1. The plaintiff had taken out notice of motion for appointment of Court Receiver and for diverse reliefs. The said motion was decided by order dated 15th February, 1996 and the Receiver, High Court Bombay was appointed and defendant no.1 was appointed as an agent of the Court Receiver. Defendant no.1 was directed to pay royalty of Rs.3,500/- per month. Defendant no.1 continued to use the said car as an agent of the Court Receiver. The plaintiff had taken out Notice of Motion No.2586 of 1999 and the said motion was disposed of by order dated 9th April, 2001 and the claim of mesne profits put up by the plaintiff was not granted and the decision on the said claim was postponed till the hearing of the suit. 23. Some time in or about 16th October 2003, defendant no.1 indicated his desire to surrender the car and bring to an end to his agency agreement with the Court Receiver. The plaintiff pointed out various difficulties in the car by letter dated 1st January, 2004. The defendants : 15 : S-2537-92-Judgement=.sxw denied the said allegations by letter dated 23rd March, 2004. Court Receiver prepared his report on 11th October, 2004 and ultimately by order passed by this Court on 30th November, 2004, the car was ordered to be returned to the plaintiff and the plaintiff was directed to take back the possession of the said car within 2 weeks. In addition to the above order, learned Judge who passed the order on 30th November, 2004 directed that the suit be placed on board after 2 weeks for withdrawal / disposal and the Court Receiver’s Report was disposed of. The plaintiff filed Appeal (L) No.851 of 2004 against the said order dated 30th November, 2004. The notice of motion was taken out. The said appeal came up for admission before the learned Single Judge during the Vacation and the appeal itself was taken up for hearing and by consent the appeal was disposed of by order dated 27th December, 2004. The relevant and important portion of the order dated 27th December, 2004 is as under. “By consent the following order is passed. It is made clear that the plaintiff will be entitled to take possession of Mercedes Benz 240D bearing Registration No. MMH 9289 as per the order dated 30.11.2004. The said possession will be without prejudice to his rights and contentions that the car needs repairs and he is entitled to possession after all the repair carried out by the defendant.” : 16 : S-2537-92-Judgement=.sxw 24. The plaintiff took possession of the said car pursuant to this order dated 27th December, 2004 on 8th January, 2005. Before this Court arguments are advanced by learned Counsel Mr. Shah that though the plaintiff took possession of the car on 8th January, 2005, that was subject to the repairs to be carried out and, therefore, the plaintiff was justified in asking relief in terms of prayer clause (e) and according to Mr. Shah the possession which was received by the plaintiff on 8th January, 2005 cannot be considered as a full fledged possession and that is how the claim of mesne profits remains and that is how the Court should order enquiry into the mesne profits at the time of disposal of the suit in term of prayer clause (e). 25. Learned Counsel Mr. Makhija appearing on behalf of the defendants opposed the submission and took me through the portion of order dated 27th December, 2004 and submitted that plaintiff was permitted to take possession of the car, carry out the repairs and claim the said amount in the suit. According to him order dated 27th December, 2004 had an effect of putting the plaintiff in possession of the car and, therefore, when plaintiff took possession of the said car on 8th January, 2005 the possession of the car was restored to the plaintiff. 26. Learned Counsel Mr. Makhija had further submitted that since the plaintiff got possession of the said car on 8th January, 2005, there is no : 17 : S-2537-92-Judgement=.sxw question of mesne profits being granted for the period after 8th January, 2005. If the plaintiff intended to apply for compensation for the period namely 6th August, 1992 till he got possession, it was necessary for the plaintiff to amend the plaint and quantify his claim for the period 6th August, 1992 till 8th January, 2005. According to learned Counsel for the defendants in the