IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 119 of 2003 Reserved on : 1st September, 2008 Date of Decision: 5th September, 2008 Surender Pal Appellant Versus Sewak Ram Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr. G.R.Palsra, Advocate. For the respondent: Mr. Raman Sethi, Advocate. Sanjay Karol, J. The present appeal arises out of judgment and decree dated 28.5.2003 passed by the District Judge, Mandi, HP in Civil Suit No. 12/2000 titled as Shri Sewak Ram vs. Shri Surender Pal, decreeing the plaintiff’s suit only for a sum of Rs.2 lacs alongwith interest @ 6% per annum till the date of payment. The present respondent (hereinafter referred to as the plaintiff) filed a suit for recovery of a sum of Rs.2,88,000/- against the appellant (hereinafter referred to as the defendant) pleading that vide agreement dated 6.3.1998 plaintiff had agreed to sell his hypothecated vehicle bearing No. HP-29-0113 to the defendant. As per agreement Rs.1,10,000/- was handed over to the plaintiff and possession of the vehicle in turn was handed over to the defendant. A sum of Rs. 2 lacs was agreed to Whether the reporters of Local Papers are allowed to see the Judgment? 2 be deposited by the defendant with H.P. State Cooperative and Agriculture and Rural Development Bank, Joginder Nagar, H.P. and any excess amount payable to the Bank over and above the said sum of Rs.2 lacs was to be paid by the plaintiff. It appears that the defendant defaulted in making payment of even a single installment and thus the plaintiff filed the suit. The written statement filed by the defendant makes an interesting reading and reproduced in its entirety:- “The defendant humbly submits as under:- Preliminary objections: 1. That the plaintiff has not come to the Ld. Court with clean hands hence the suit is liable to be dismissed. 2. That the plaintiff is estopped by his own act and conduct to institute and constitute the present suit. 3. That the suit is not maintainable in the present form. On Merits: 1. This para of the plaint is denied. 2. This para of the plaint is admitted to the extent of agreement and payment of Rs.1,10,000/- rest of the para is wrong hence denied. 3. This para of the plaint is wrong hence denied. 4. This para of the plaint is again wrong hence denied in toto. 5. This para of the plaint is also wrong, false and frivolous hence denied. 6. This para of the plaint is again wrong hence denied. 7. This para of the plaint is again wrong and baseless hence denied. 8. This para of the plaint is also wrong hence denied. No cause of action arose to the plaintiff. 9. This para needs no submissions being legal. 10. This para of the plaint is also wrong hence denied.” The Court below framed the following issues:- 3 1. Whether the plaintiff is entitled to the amount claimed by him as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the plaintiff is estopped to file the suit by his act and conduct? OPD. 4. Relief. Appreciating the material on record, the Court below decided Issue No.1 in favour of the plaintiff and decided issues No.2 and 3 against the defendant. The suit was accordingly partly decreed for a sum of Rs.2 lacs alongwith interest @ 6% per annum. Aggrieved by the same the defendant has filed the present appeal. Mr. Palsra, learned counsel for the defendant has submitted that the defendant is entitled to pay only Rs. 2 lacs and not the interest for the reasons that the plaintiff did not fulfill its reciprocal obligation as contained in Clause 7 of the agreement by not depositing the excess loan over and above the sum of Rs. 2 lacs. He has further submitted that Rs. 2 lacs could not be deposited as the name of the Bank was wrongly mentioned in the agreement and the plaintiff was under an obligation to furnish correct particulars and till the same was done the defendant was under no obligation to pay the amount. Per contra, Mr. Sethi, learned counsel for the plaintiff has supported the judgment and decree for the reasons stated therein. I have heard the learned counsel for the parties and perused the record. In order to prove its case, the plaintiff examined himself as PW-1 and proved on record copy of agreement (Ext.PA), legal notices dated 4 19.7.2000 and 19.8.2000 (Ext.PB and Ext.PF). Statement of Account (Ext.PH) issued by the Bank was also proved on record. The defendant Surender Pal examined himself as DW-1 and Sanjiv Kumar Clerk cum Recovery Supervisor as DW-2. From Ext.PA it is evident that the vehicle in question was sold for a sum of Rs.3,10,000/-. It is an admitted case of the parties that the vehicle was hypothecated and there was bank liability which was quantified to Rs. 2 lacs to be payable by the defendant and any excess amount was agreed to be paid by the plaintiff. It is also proved that the Branch of the Bank has been wrongly mentioned as Joginder Nagar whereas it should have been Mandi. However, from Ext.PH Statement of Account issued by the Manager of the concerned Bank, Mandi Branch, it is evident that between 6.3.1998 the date of the agreement and 23.6.2000 there are only three credit entries of Rs.80,000/-, Rs.10,000/-, and Rs.25,000/- amounting to Rs.1,15,000/-. It is admitted case of the parties that the plaintiff has deposited the amount reflecting the said credit entries. As on the date of the agreement Ext.PH reflects that total outstanding amount was only Rs.2,60,708/-. Therefore, in my considered view the plaintiff had fulfilled his part of the obligation as contained in Clause 7 of the agreement by depositing the excess amount over and above Rs. 2 lacs, which also includes the interest. From Ext.PH it is also evident that the defendant has not deposited any installment whatsoever. The appellant has neither deposited any amount in the Bank nor made any payment to the plaintiff. From the record no justification arises for the same. Assuming the plaintiff had wrongly mentioned the Branch of the Bank to be Jogindernagar instead of Mandi, it was the defendant’s obligation to have checked up the correct 5 particulars from the plaintiff and complied with its contractual obligation. Importantly, the defendant took possession of the vehicle and used the same to its benefit and advantage. Further, DW-1 has admitted that he had come to know that the vehicle was hypothecated with the Mandi Branch. Having come to know he could have deposited the amount there. He being the debtor had to chase the creditor to make the payment in terms of the agreement which he chose not to do. The parties had specifically agreed for payment of the amount in installments as the defendant had no money to pay the same. Since the plaintiff had performed its reciprocal obligation, the defendant was duty bound to have complied with its part of the contract which was not done so in the present case. It is not the case of the defendant that the sale was defective, the agreement was void or was an act of fraud, misrepresentation, suppression or concealment. The defendant did not issue any notice or take any steps of informing the plaintiff with regard to incorrect particulars of the Bank. The defendant is absolutely at fault, therefore, he is liable to pay not only the contractual amount but also interest as awarded by the Court below. The Court below has considered the entire material in its entirety and there is nothing on record from which it can be inferred that the judgment, decree is illegal or needs to be set aside. The appeal is accordingly dismissed. September 5, 2008 (Sanjay Karol), (C) Judge.