IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 RSA.No. 542 of 2009() --------------------- AS.275/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.13/2003 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- JOY M.Y., S/O. ULAHANNAN, AGED 46 YRS, MUDAVANKUZHIYIL HOUSE, ONAKKOOR VILLAGE, ONAKKOOR KARA, MUVATTUPUZHA TALUK. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ------------------------------------------------- 1. VASUDEVAN, S/O. KUNJU, KARIKKAKUZHIYIL HOUSE, MUVATTUPUZHA KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK. 2. JAMES POULOSE, S/O. POULOSE, AGED ABOUT 48 YEARS, MANNATHIKULATHI HOUSE, ONAKOOR KARA, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK. 3. BENNY, AGED ABOUT 40 YEARS, PLAPPURAKKATTU HOUSE, PAMPRA KARA, MANEED VILLAGE, MUVATTUPUZHA TALUK. ADV. SRI.THOMAS M.JACOB FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.542 OF 2009 ----------------------------------- Dated this the 5th day of October, 2010 J U D G M E N T Concurrent decision rendered by the two courts below non-suiting the appellant/plaintiff negativing his claim for money due as balance sale consideration over a vehicle, a bus, transferred in favour of the 1st defendant/1st respondent, is challenged in the second appeal. 2. The bus having a valid permit, which was due to expire only in 11.05.2003, admittedly, was transferred in favour of the 1st defendant by the plaintiff pursuant to A4 agreement. Sale consideration fixed for the vehicle was Rs.2,50,000/-, of which, a sum of Rs.1,50,000/- was paid and the balance sum reserved for payment within a period of 45 days. The balance sum so due was not paid even after the expiry of the period, was the basis of the suit claim raised by the plaintiff. Resisting the suit claim, the 1st RSA.NO.542/2009 2 defendant contended that the conditions covered by A4 agreement wherein the plaintiff had undertaken to discharge the liability whatever is due in respect of the vehicle including those covered by the Kerala Motor Transport Workers' Welfare Fund Act, for short, the 'Act', as the contribution due towards such fund for his previous employees, had not been discharged, and as such, the plaintiff is not entitled to have a decree as canvassed for in the suit. Both the courts, after considering the materials tendered in the case with reference to the pleadings of the parties and also the law applicable, arrived at the concurrent conclusion that the claim raised by the plaintiff for the balance sale consideration over the vehicle from the 1st defendant/1st respondent cannot be allowed where it has been established that a sum of more than Rs.2,50,000/- is due as a public revenue due on him under the aforesaid Act, in respect of the contribution due to his former employees engaged in the vehicle, the bus, covered by the transfer with the 1st defendant. In that view of the matter, the plaintiff was non-suited, which in appeal was confirmed by the lower appellate court as well. RSA.NO.542/2009 3 3. The learned counsel for the appellant urged before me that the interpretation placed over A4 agreement by the courts below was egregiously erroneous and there was no undertaking to discharge the liability but only of owning up the liability due under the Act. Both the courts went wrong in holding that till such liability is discharged, the plaintiff cannot realise the balance sale consideration from the 1st defendant, is the submission of the counsel. The 1st defendant has not raised a counter claim in the suit is also emphasised by the counsel that the defense set up as over the liability due towards the contribution to the aforesaid Act in examining the merit of the suit claim, which was for the balance sale consideration agreed upon under A4, but, admittedly, not paid, was totally uncalled for in the proved facts of the case. 4. Perusing the judgments rendered by both the courts with reference to the submissions made by the learned counsel for the appellant, I find that no interference with the concurrent RSA.NO.542/2009 4 decision non-suiting the appellant/plaintiff is called for in the case. The vehicle covered by A4 originally belonged to the 2nd defendant and he was its registered owner. He transferred the vehicle to the 3rd defendant and from him, the plaintiff obtained ownership over the same on payment of the sale price thereof. Plaintiff transferred the vehicle to the 1st defendant for a sale price of Rs.2,50,000/- on executing the relevant documents and also A4 agreement stipulating the conditions of such sale. Needless to point out that sale of a motor vehicle is by transfer of possession of such vehicle and execution of the sale letter, which admittedly had been completed, and the 1st defendant is in possession as the owner of the vehicle. Whatever be the interpretation to be placed over A4 agreement with respect to the conditions specified thereunder, it has to be appreciated in the backdrop that a sale of the vehicle had already taken place. When that be so, the argument canvassed by the counsel for the appellant that as a seller and previous owner, he had not undertaken to discharge the liability, which, admittedly was outstanding over the vehicle, but made a declaration only that he RSA.NO.542/2009 5 would be liable for such liability deserve to be taken note of only for its rejection. A statutory charge, admittedly, is over the vehicle in relation to the contribution due from the plaintiff to the former employees of the vehicle. No such employee has come forward to claim the contribution so far, and even assuming that no proceedings thereof has commenced till date, will not absolve the plaintiff from its liability which is statutorily covered. B3 certificate produced by the 1st defendant clearly demonstrate that a sum of Rs.2,57,082/- is due as the outstanding contribution towards the Act from the registered owner/possessors of the vehicle, covered by A4 agreement. The certificate further discloses that as and when it was issued, there was an interim stay passed by this Court interdicting the recovery of the amount. The learned counsel for the appellant/plaintiff submitted that the writ petition in which such order was passed was at the instance of the 2nd defendant, the former owner of the vehicle, who even now continues as the registered owner of such vehicle. Whatever that be, where it is demonstrated that ownership of the vehicle had passed from the RSA.NO.542/2009 6 2nd defendant to the 3rd defendant and then to the plaintiff and later to the 1st defendant, the statutory authority, no doubt, can realise the arrears due, the contribution payable to the former employees engaged in the vehicle, from the plaintiff and also the 1st defendant, who is now is in possession and enjoyment of the vehicle as its transferee. The question whether the 1st defendant should raise a counter claim where it is shown that the liability due as a statutory charge still prevails over the vehicle and, as such, the balance sale consideration if at all payable should go to the State first and not to the plaintiff requires to be examined with reference to Section 13 and 59 of the Sale of Goods Act, 1930. Section 13 states that where the seller does not fulfil the condition in a contract of sale the buyer may treat the breach of the condition as a breach of warranty. Where there is a breach of warranty, Section 59 of the Act enables the buyer to plead it for diminution or extinction of the price. A breach of warranty in the contract of sale allows the seller to set up a plea, as done in the present case, to show the disentitlement of the plaintiff to claim the balance sale consideration. So much so, there is no RSA.NO.542/2009 7 merit in the submission made that without raising a counter claim and adjudication of such claim, the defense set up by the plaintiff to resist the suit claim could not have been entertained by the courts below. There is no merit in the appeal, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp RSA.NO.542/2009 8