fa82.88 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 82 OF 1988 Pandurang Marotirao Makhate .. APPELLANT VERSUS 1 Manohar Narayanrao Choudhari ( deceased through LRs) 1-A Bhanabai w/o Manohar Choudhari 1-B Chandrakant Manohar Choudhari ( deceased through LRs) 1-B/1 Smt. Chhaya w/o Chandrakant Choudhari age 45 years, occ. household r/o Savaleshwar (P), Tq. Kaij, Dist. Beed. 1-B/2 Priya @ Rani d/o Chandrakant Choudhari age 25 years, occ. and r/o as above. 1-B/3 Sandhya d/o Chandrakant Choudhari age major, occ. and r/o as above. 1-B/4 Shailla d/o Chadrakant Choudhari age major, occ. and r/o as above. 1-B/5 Rushikant /so Chandrakant Choudhari age major, occ. and r/o as aboe. 1-C Nandkumar Manohar Choudhari 1-D Sushila w/o Dattu Ambad 1-E Sumitra w/o Ashokrao Bhandwal fa82.88 2 2 Arjun Manoharrao Choudhari .. RESPONDENTS Mrs. C.S. Deshmukh, advocate for the appellant. Mr. S.K. Kulkarni, advocate holding for Mr. V.M. Kagne, advocate for respondent nos. 1-A, 1-B/5, 1-C, 1-D, 1-E and respondent no. 2. ===== CORAM : R.M. BORDE, J. DATE : June 10, 2011. ORAL JUDGMENT : 1 This is an appeal filed by the original plaintiff raising exception to the judgment and decree passed by the Civil Judge, Sr.Dn., Beed on 4-1-1988 in Special Civil Suit no. 4/1981. 2 Appellant (hereinafter referred to as the ‘plaintiff’) instituted suit claiming recovery of amount of Rs. 1,03,794/- towards rental charges, loss of rent and damages. Plaintiff runs a shop namely “Prashant Krishi Seva Kendra” at Kaij and deals with the supply of agricultural products and machinery. Plaintiff is an agricultural graduate possessing B.Sc. (Agri.) decree. He was appointed in Government service. However, he tendered resignation and started Agro Service Center sponsored by Government of India. Plaintiff owned and possessed a tractor bearing no. MHZ 2683 which fa82.88 3 he had purchased by raising loan from State Bank of Hyderabad, branch at Kaij. Plaintiff borrowed loan to the tune of Rs. 85,000/- for purchase of the tractor. The amount of loan was repayable in 10 equal half yearly instalments. It is the contention of the plaintiff that on 10-3-1976 defendant no. 1 approached him and requested to lend the tractor on hire basis for certain duration. Accordingly, agreement was entered into between plaintiff and defendant no. 1 for hire of tractor for a period of two years commencing from 10-3-1976 to 10-3-1978. Hire charges were prescribed at Rs. 95/- per day. The terms and conditions of the agreement were reduced into writing. Those are as follows :- i That the plaintiff should give tractor alongwith trolley, plough andmogada with tyres and tubes in good condition. The defendant was to pay entire rent and return the tractor with new tyres and tubes. ii That the defendant was to pay the amount of rent time to time. iii That the defendant would bear all the expenses required for oil, diesel, driver’s pay, road taxes, local taxes etc. iv That the defendant will be liable for the compensation and damages which may arise out of negligent use and damage of the tractor. And the plaintiff would be entitled to recover the said amount of rent from the property held by the defendant. fa82.88 4 . The amount of hire charges, as per the agreement, was payable from time to time every month. Plaintiff delivered possession of the tractor to the defendant, as per terms stated in the agreement, and defendant continued to put the tractor for his use. Defendant did not pay the rent regularly. He tendered bank draft for Rs. 10,000/- on 5-5-1977 which was encashed by the plaintiff. On the date of presentation of the draft, an amount of Rs. 40,090/- was due and payable by the defendant covering rent for 422 days. Defendant did not pay the rent regularly and returned the tractor on 15-11-1977. Defendant put the tractor for use for a period of 615 days from 10-3-1976 to 14-11-1977. Hire charges payable towards use of the tractor at the rate of Rs 95/- per day come to Rs. 58,425/-. Defendant paid an amount of Rs. 10,000/- to the plaintiff and the balance amount to the tune of Rs.48,425/- remains payable towards hire charges. As a result of non- payment of rent, plaintiff could not repay the bank dues. The tractor was attached and taken away by the bank on 17-11-1977 on account of non- payment of bank dues. Plaintiff got released the tractor on 29-3-1978. Plaintiff was required to pay additional interest to the tune of Rs. 12,520/- and the hire charges payable for 134 days commencing from 17-11-1977 to 29-3-1978 i.e. the period covered under the agreement comes to Rs. 12,730/-. fa82.88 5 Plaintiff also claims repair charges which he was required to spend for keeping the tractor in workable condition. Thus, plaintiff claims recovery of amount of Rs. 1,01,794/-. Plaintiff demanded the amount by issuing notice on 9-2-1978. However, defendant refused to accept the notice and returned the same. Second notice was issued on 18-3-1978 and the third one was issued on 17-11-1979. However, defendant refused to accept all the notices so also did not pay the amount as demanded. Plaintiff therefore was constrained to present the suit claiming recovery of amount as stated above. 3 Defendant appeared and resisted the suit by filing written statement. Defendant has denied the suit claim in its entirety. The theory put up by the plaintiff in respect of hire of tractor has been denied by the defendant. According to the defendant he is not liable to pay any amount to the plaintiff. It is contended by defendant that plaintiff is his near relative and they agreed to cultivate seed plots since the year 1974-1975. Plaintiff was possessing expertise, he being the agricultural graduate and the defendant had the landed property. Plaintiff and defendant therefore decided to cultivate and grow seed plots and they both decided to share the proceeds to the extent of 50 per cent each. Execution of document, as claimed by fa82.88 6 plaintiff, in respect of hire of tractor has been denied by the defendant. According to him, the document is forged and fabricated. Plaintiff could not pay the dues payable to the bank and as such he approached the defendant to help him in clearing off the bank dues. The tractor was therefore decided to be sold in favour of son of the plaintiff who undertook to repay the bank loan. The entire bank loan was repaid by defendant no. 2 and the tractor was transferred in the name of defendant no. 2. 4 Defendant no. 2 also denied the suit claim by filing written statement at exh. 45. He raised identical contentions as that of defendant no. 1. It is contended by defendant no. 2 that he discharged loan liability of the plaintiff so also paid dues recoverable by Marathwada Development Corporation from plaintiff. As per the agreement between plaintiff and defendant no. 2, the tractor in question was transferred in his favour. Defendant no. 2 therefore prayed for dismissal of the suit. 5 After receiving the evidence adduced by the parties, the trial Judge did not find favour with the plaintiff and dismissed the suit by judgment and decree dated 4-1-1998. Hence, this appeal by the original plaintiff. fa82.88 7 6 Issue no. 1 framed by the trial court as to whether the plaintiff proves that he had given tractor on hire to defendant at the rate of Rs. 95/- per day for a period of two years from 10-3-1976 to 10-3-1978, has been answered in negative. Trial court has recorded the finding that the tractor in question was purchased by plaintiff by borrowing loan from State Bank of Hyderabad. The tractor was hypothecated to the bank and as per the terms of the hypothecation it was not permissible for the plaintiff alone to transfer the tractor for temporary period on hire basis. The reasons recorded for disbelieving the agreement entered into between plaintiff and defendant, in my opinion, are not proper. Hypothecation agreement is not placed on record nor it is a case of either of the parties that the agreement is against the terms of hire purchase agreement entered into by plaintiff with the State Bank of Hyderabad. 7 Plaintiff has placed on record agreement marked at exh. 102. Plaintiff has examined himself and stated about the agreement. The agreement in question has also been proved by plaintiff by examining witness to the agreement. PW 2 Shridharrao has stated about the agreement entered into between plaintiff and defendant no. 1. According to the said witness the agreement was scribed as per the instructions of Manohar and Pandurang. fa82.88 8 Pandurang and Manohar signed the document in the presence of the witness. The document bears the signature of the witness. Witness for defendant, Shivaji Pawar, has also identified the signature of defendant below exh. 102 and 103. The document in question which has been placed on record by the plaintiff who has deposed about execution of the document and it has been proved by examining attesting witness to the document. Moreover, witness to the defendant has also stated about the signature of defendant no. 1 appearing below the document. As such, it has to be concluded that the document exh. 102 is proved in accordance with the provisions of law. The reasons recorded by the trial court for arriving at conclusion that the document i.e. agreement to hire the tractor placed on record at exh. 102 cannot be said to have been proved, is erroneous. There is no reason to disbelieve the case put up by plaintiff in respect of his entering into agreement with the defendant for giving the tractor on hire basis at the rate of Rs. 95/- per day for a period of two years. 8 Even though it is concluded that the plaintiff has established the agreement entered into with the defendant, he is not likely to succeed in claiming recovery of hire charges as claimed by him. Plaintiff has claimed the arrears amounting to Rs. 48,425/- towards hire charges for a period fa82.88 9 between 10-3-1976 till 14-11-1977. It is admitted by plaintiff that defendant has paid sum of Rs. 10,000/- towards hire charges. It is also stated by plaintiff in his deposition that as per the agreement between the parties, hire charges were payable from time to time every month. It is recorded in the agreement that daily hire charges were payable from time to time every month. It is recorded in the agreement that daily hire charges in respect of tractor for 24 hours would be Rs. 95/- and the defendant would pay the hire charges regularly. In his deposition before the court, plaintiff is specific in respect of aspect of paying hire charges which according to him, are payable every month. It is also established from the evidence placed on record that the tractor in question was given in possession of the plaintiff by defendant no. 1 on 15-11-1977. Hire charges for the last month i.e. November 1977 were payable by 15 th December. Plaintiff is claiming recovery of dues towards hire charges for a period between 10-3-1976 till 14-11-1977. Plaintiff has presented suit claiming recovery of amount on 14-11-1980. As per Article 12 of the Limitation Act, recovery of dues towards charges for hire of animal, vehicle, boats or household furniture is permissible within three years when the hire becomes payable. The claim in respect of payment of hire charges from March 1976 till October 1977 shall have to be considered as barred by limitation. Plaintiff himself has stated in his deposition that hire charges are fa82.88 10 payable every month. It is also not disputed that the tractor was returned to the plaintiff on 15-11-1977. Suit is filed by plaintiff on 14-11-1980. Thus, the suit presented by plaintiff is within limitation only in respect of recovery of hire charges for the tractor for 15 days of the month of November. The claim raised by plaintiff in respect of recovery of hire charges until the month of October 1977 shall have to be treated as barred by limitation. It is also not disputed that the defendant has paid sum of Rs.10,000/- to the plaintiff on 5-5-1977 which can be treated as payment of dues in respect of part of the hire charges. 9 It is the contention of the defendant that there was agreement between plaintiff and defendants in respect of purchase of tractor by defendant. Defendant agreed to bear the liability in respect of payment of loan dues payable to State Bank of Hyderabad as well as to Marathwada Development Corporation. It is clear from record that defendants paid dues receivable by bank from plaintiff and the State Bank of Hyderabad who lend finance for purchase of the tractor, consented for transfer of the vehicle i.e. tractor in favour of defendant no. 2. Communication addressed to the manager of the bank dated 22-8-1981 signed by plaintiff and defendant is placed on record. Said communication is on stamp paper of Rs. 5/-. It is fa82.88 11 written in the communication that the tractor in question has been agreed to be purchased by defendant. It was agreed by defendant to pay loan amount of Rs. 90,000/-. It is also stated in the agreement that the loan amount payable to the Marathwada Development Corporation amounting to Rs. 10,000/- together with interest would be paid by defendant. Request was made to the manager of the bank to accord consent for the transaction. It has appeared in the evidence that the loan amount payable to the State Bank of Hyderabad amounting to Rs. 90,000/- was deposited by defendant and the bank issued ‘no objection’ for transfer of tractor in favour of defendant. Defendant is also stated to have cleared the dues towards Marathwada Development Corporation together with interest. In view of the subsequent agreement in respect of sale of tractor, the parties have agreed, according to defendant, to settle their dispute in respect of hire charges allegedly payable by defendant no. 1. Plaintiff has denied the contentions raised by the defendants in that regard. However, the fact remains that the tractor in question came to be transferred in favour of defendant no. 2 on his depositing the amount recoverable as loan with the bank. In view of the subsequent agreement between plaintiff and defendant in respect of sale of the tractor, defendants have undertaken to discharge the loan liability of plaintiff in respect of loan payable to the State Bank of Hyderabad as well as fa82.88 12 Marathwada Development Corporation. The transaction which has taken place on later point of time has been completed. In view of the subsequent transaction, plaintiff is not entitled to claim recovery of dues from defendants. Even otherwise, the claim raised by plaintiff in the suit is barred by limitation. Trial court was therefore justified in dismissing the suit presented by plaintiff. I do not find any merit in the appeal. Appeal is devoid of substance. For the reasons recorded above, appeal stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs. 10 Pending civil application, if any, does not survive and stands disposed of. ( R.M. BORDE, J.) dyb