HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 209 of 2002 Decided on: 18.06.2010 Harish Kumar ………Appellant. Versus Rajesh Kumar & Others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Dushyant Dadwal, Advocate. For respondent No.2: Mr.G.R. Palsra, Advocate. For respondent No.3: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 96 of the CPC against the judgment and decree of the court of learned District Judge, Mandi, dated 1.6.2002, vide which the suit for mandatory injunction and in the alternative for recovery of Rs.3.00 lacs, filed by the appellant (hereinafter also referred to as the plaintiff) as against the defendants, was dismissed. 2. Briefly stated the facts of the case are that the plaintiff entered into an oral agreement with respondent No.1 (hereinafter also referred to as defendant No.1), vide which the plaintiff had purchased a truck bearing No.HID 1522 from defendant No.1 for a sum of Rs.1,51,000/-. The plaintiff further alleged that he paid ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - a sum of Rs.79,000/- to defendant No.1 on the date of the execution of an affidavit dated 8.6.1990. The balance of the amount of Rs.72,000/- was to be paid by the plaintiff by way of instalments in the State Bank of India, Mandi Branch. It was also alleged that in the affidavit of defendant No.1 it is contained that in case the plaintiff failed to pay the instalments to the Bank, defendant No.1 would be in a position to stop the vehicle and that the plaintiff would be liable to pay the instalments as also the vehicle was to remain with the plaintiff. It was further alleged that after the affidavit was sworn in, the plaintiff plied the truck, paid some amount only to the bank and thereafter the defendant allegedly took the possession of the vehicle in question from the plaintiff. Hence the suit for mandatory injunction filed by the plaintiff for direction to defendant No.1 to hand over the possession of the truck or in the alternative for recovery of Rs.3.00 lacs, including part payment made to defendant No.1 and for amounts spent by him on the repairs of the said truck. 3. Defendant No.1 admitted the execution of the agreement. He pleaded that the plaintiff never paid any instalment except a sum of Rs.7,000/- towards insurance charges. He pleaded that he suffered loss of income and had to pay interest at an exorbitant rate to the Bank from which the loan was taken and since the vehicle was impounded by the police in a criminal case and was released thereafter in favour of the father of the plaintiff on - 3 - Sapurdari and as such, the plaintiff is not entitled to any relief claimed by him. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the plaintiff has become owner of the truck in dispute on 8th June, 1990, as alleged? OPP 2. Whether the plaintiff has complied with all the terms of the agreement entered into between the parties, as alleged? OPP 3. If Issue No.2 is proved in the negative, what is its effect? OP Parties 4. Whether the possession of the truck in question was forcibly taken by defendant No.1? If so, what is its effect? OPP 5. Whether the plaintiff has been paying regular payment of instalments to the State Bank of India towards loan, raised by defendant No.1 for purchase of truck in question, as alleged? OPP 6. Whether defendant No.1 suffered any loss due to wrongful acts of the plaintiff? If so, to what extent and what is its effect? OPD 1 7. Whether the plaintiff has paid all the amounts chargeable for plying the vehicle on public roads as required under different laws? If so, its effect? OPP 8. Whether the plaintiff spent anything on the repair of the vehicle and whether the plaintiff has suffered any loss of earnings as alleged in para No.13 of the plaint? OPP 9. Whether there is no enforceable cause of action against defendant No.1? If so, its effect? OPD 1 10. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment dismissed the suit of the plaintiff. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that there is no stipulation in the affidavit of defendant No.1 that he will be entitled to the possession of the vehicle in case the loan instalments are - 4 - not paid by the plaintiff and as such the plaintiff was entitled to the relief of mandatory injunction directing defendant No.1 to hand over the possession of the vehicle to him. It was also submitted that the plaintiff was entitled, in the alternative, to an amount of Rs.79,000/- paid to defendant No.1 apart from the repair charges and other expenses and as such the suit, in the alternative, ought to have been decreed for a recovery of Rs.3.00 lacs, as claimed by the plaintiff. However, in appeal, the claim was restricted to a sum of Rs.2.05 lacs by the plaintiff. 8. On appraisal of the evidence led by the parties, it is clear that the execution of the affidavit in question, dated 8.6.1990, has not been disputed by the parties and the said affidavit is the basis of the agreement entered into in between the parties. It is clear that the plaintiff had agreed to pay the remaining amount of Rs.72,000/- to the Bank. It is also clear from a perusal of the evidence led by the parties and as held by the learned trial Court also that the plaintiff only paid a sum of Rs.7,000/- as insurance of the vehicle. The plaintiff as PW-1 has not been able to substantiate that he paid any other instalment to the Bank and the receipts in question were not produced by him before the learned trial Court. Thus, a default had been committed by the plaintiff in making the instalments of the amount to the Bank, as agreed to in between the parties. The only question left for consideration is as to whether the plaintiff was entitled to the relief of mandatory injunction directing - 5 - defendant No.1 to return the vehicle in question. It is true that there is no specific condition that defendant No.1 will be entitled to the possession of the vehicle in case the plaintiff fails to pay the instalments in time. However, the wording used in the affidavit is that the defendant will be in a position to stop the vehicle. It is difficult to comprehend what the parties intended by the use of words ‘to stop the vehicle’, but one thing was clear that the plaintiff will not be permitted to ply the vehicle in case he fails to pay the instalments to the Bank in time. In case the vehicle had been taken forcibly from the possession of the plaintiff, he should have filed a criminal complaint as against the defendant or should have filed a suit specifically for possession, which has not been done. The plaintiff cleverly worded the plaint and claimed the relief of mandatory injunction to which he was not entitled in the facts and circumstances of the case, since it was specifically mentioned in the affidavit that defendant No.1 will be in a position to stop the vehicle. 9. In so far as the question as to what amount the plaintiff was entitled is concerned, it was for him to prove that in case he had failed to comply the agreement or pay the instalments, he was entitled to the refund of a sum of Rs.79,000/- already paid by him. This question has also to be determined as to for how much period the vehicle was used by the plaintiff, for how much amount he was entitled to and how much amount he has spent towards the repairs of the vehicle. All these facts have not been proved by the - 6 - plaintiff and in case the plaintiff had himself failed to pay the instalments in time, he cannot be held entitled to the refund of the amount in question apart from the other expenses claimed by him for which there is no evidence on record. Therefore, the final findings recorded by the learned trial Court dismissing the suit of the plaintiff do not call for an interference by this Court. 10. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs. June 18, 2010. (V.K. Ahuja), (TILAK) Judge.