1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.366 OF 1995 Babasaheb Chandrabhan Nath, Age-46 years, Occu: Agriculture, R/o-Sheri Buzurg, Tq-Ashti, Dist-Beed. .... APPELLANT. VERSUS Osman Rasool Tamboli, Age-40 years, Occu: Trade, R/o-Yermala, Tq- Kallam, Dist-Osmanabad. .... RESPONDENT. ... Mr.S.S. Bora Advocate i/b. Mr. S.C. Bora Advocate for the Appellant. Mr.A.S. Deshpande Advocate and Mr.S.A. Deshpande Advocate for Respondent (Absent). ... CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 15TH JUNE, 2009 JUDGMENT PRONOUNCED ON : 25TH JUNE, 2009. 2 JUDGMENT: 1. Heard Mr. Bora, learned counsel for the Appellant. Though the Respondent was served, no one appeared on behalf of him when the matter was called out for final hearing. 2. Present First Appeal preferred by original defendant against the Judgment and decree dated 28th February, 1995 passed by Joint Civil Judge, Senior Division, Osmanabad in Special Civil Suit No.87 of 1992. Appellant herein above is original defendant and Respondent is original plaintiff. The plaintiff entered into an agreement dated 30th December, 1990 for purchase of Truck bearing No. MTO 5216 belonging to defendant for sum of Rs.1,45,000/-. As per the said agreement dated 30th December, 1990, it was decided that plaintiff should pay a sum of Rs.60,000/- as an earnest money to the defendant on the same day, then Rs.20,000/- to be paid on 10th January, 1991 and the remaining amount to be paid on 5th March, 1991 to the defendant by the plaintiff. Thereafter the defendant should execute a deed in favour of plaintiff, and to handover the possession of the truck and transfer necessary documents. 3 3. It is the case of the plaintiff that as per contract, the plaintiff paid the entire amount of Rs. 1,45,000/- to the defendant. Thereafter the plaintiff created a new body-cabin for which the plaintiff incurred expenses of Rs.38,000/-. The plaintiff purchased Battery, Rope, Cut-out, Bit, Tadpatri etc. In all these, the plaintiff spent about Rs.1,41,746/-. After that the plaintiff started giving the Truck on hire and used to earn sum of Rs.1500/- per day. After some time, the plaintiff came to know that the Truck was on hire purchase. When these facts were brought to the notice of the defendant, at that time the defendant asked for Rs.15,000/- out of remaining price, so that he can clear the same. Thereafter the plaintiff requested the defendant to execute all documents for transfer of the said Truck in his name. Inspite of paying of the agreed price to the defendant, the defendant failed and neglected to handover original papers like R.C. Book, Tax Books, Permit, Fitness certificate etc. to the plaintiff. On the basis of application made by defendant in the R.T.O. Office, Truck came to be transferred in the name of the plaintiff. It is the case of the plaintiff 4 that though the defendant received the entire amount of sale price of the said Truck, the defendant filed Criminal Case bearing R.C.C. No.196 of 1991 against the plaintiff in J.M.F.C. Court Ashti on the allegation that Truck belongs to the defendant. In the said criminal proceeding, defendant obtained search warrant and attached the said Truck. The Criminal Court handed over Truck to the defendant on executing indemnity bond of Rs.1,50,000/- on condition to produce the same if required in the Court. After getting possession of the Truck, the defendant removed large number of parts i.e. six new tyres, stephani, starter, battery, jack tool, tool kit etc. and fixed old parts thereon which were unfit for long use. In this way the plaintiff suffered loss to the tune of Rs.1,45,000/- and loss of daily income of Rs.1500/- from 2nd December, 1991. For that purpose the plaintiff filed Special Civil suit No.87 of 1992 in the Court of Joint Civil Judge, Senior Division, Osmanabad. 4. It is the case of the defendant that as per agreement dated 30th December, 1990 the plaintiff failed to pay the entire price of the Truck and therefore the ownership was not transferred in the 5 name of the plaintiff. The defendant averred that the plaintiff with mala fide intention, created forged documents and submitted the same in the office of the R.T.O. for transferring the Truck in his name. Therefore, the defendant was constrained to file against the plaintiff Criminal Case No.196 of 1991 under Section 420, 467 and 471 of the Indian Penal Code in the J.M.F.C. Court, Ashti. It is the case of the defendant that the plaintiff was attempting to alienate the Truck on the strength of false documents and therefore he applied for search warrant and thereafter the said Truck was attached as per the order passed by J.M.F.C. Court. The said Truck was handed over by J.M.F.C. Court to the defendant on executing indemnity bond of Rs.1,50,000/- on condition to produce the same if required. Accordingly the defendant executed the bond and custody of the Truck was given to the defendant. 5. Learned counsel for Appellant  original defendant mainly argued on the point of ownership of the said Truck. He submitted that the plaintiff failed to pay the balance amount of Rs.35,000/- to the defendant and therefore the ownership remained with 6 the defendant only. He further pointed out that as per Exhibit 61 i.e. sale deed dated 30th December, 1990, it is specifically stated in the said sale deed that if the payment was not made on time, the defendant was entitled to take possession of the said Truck. Therefore, the learned counsel for the defendant submitted that for want of full payment, the ownership of the said Truck remained with the defendant and plaintiff has no right to file suit for damages and other declaration. Learned counsel for the Appellant - original defendant restricted his arguments on Issue No.9 framed by the trial Court, which reads as under: Whether the plaintiff is entitled to the possession of truck No. MTO 5216? 6. Learned counsel for the Appellant submitted that the learned trial Judge has rightly held that an amount of Rs.35,000/- was still due and recoverable from the plaintiff by the defendant on account of consideration of the vehicle in question. Inspite of these observations, the trial Court passed decree holding that plaintiff is owner of the suit truck bearing No. MTO 5216 and also passed decree of Rs. 7 30,000/- towards damages with interest at the rate of 6% p.a. from the date of filing the suit i.e. 25th June, 1992 till the realization of the said amount. 7. On the basis of the submissions made by the learned counsel for the Appellant, the point for consideration in the present First Appeal is: Whether the trial Court rightly held that plaintiff is entitled for declaration of ownership and possession of the Truck bearing No. MTO 5216? 8. With the assistance of learned counsel for the Appellant, I have gone through the papers and proceedings of above mentioned matter. He took me through Exhibit 61 i.e. sale deed dated 30th December, 1990 and notice dated 18th October, 1991 at Exhibit 75. Except these two documents, he has not referred to any other documents on record. The trial Court at the time of deciding Issue No.9 as reproduced herein-above, held that the plaintiff has not successfully proved that he paid the balance amount of Rs.35,000/- to the defendant. The trial Court relied on the sale deed 8 which shows that the defendant handed over the possession of the Truck to the plaintiff and not only that, the name of the plaintiff also came to be recorded in the R.T.O. record. Considering these facts, the trial Court held that it remained on the part of the defendant to file counter claim for recovery of the remaining sale price. It is clear that once the sale deed is executed and movable property is handed over to the purchaser and in case some amount is remained due and payable by the purchaser, in that case the seller has no right to take back possession of the said movable property subject to terms and conditions of agreement. At the most the seller can take out appropriate legal proceedings for recovery of the remaining unpaid price of the movable property. In the present case though it remained on the part of the plaintiff to pay remaining amount of Rs.35,000/- as part of sale price of the said truck, the defendant failed to take any legal action as per Law. Instead the defendant filed Criminal Case against the plaintiff for cheating under Section 420, 467 and 471 of the Indian Penal Code in the J.M.F.C. Court, Ashti. Therefore, the trial Court held that the plaintiff is entitled for the possession of the Truck bearing No. 9 MTO 5216. In respect of other part of the decree, the learned counsel for the Appellant has not submitted any arguments and therefore, it is not necessary to discuss the same. 9. In view of the above mentioned facts and circumstances, I do not find any substance in the present First Appeal to interfere with the findings of the trial Court on Issue No.9. The trial Court rightly held that the plaintiff is entitled to the possession of the Truck on the basis of sale deed dated 30th December, 1990. Therefore, present Appeal is dismissed with no order as to the costs. [K.K. TATED] JUDGE. asb/JUN90/fa366.95