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Randhir Singh Vs. Gurbux Singh - Court Judgment

LegalCrystal Citation
SubjectContract
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular 1st Appeal No. 15 of 1968
Judge
Reported in1979WLN170
AppellantRandhir Singh
RespondentGurbux Singh
Cases ReferredIn Bengal Corporation v. Commissioners
Excerpt:
sale of goods act, 1930 - section 14--truck surrendered to true owner--held, plaintiff is entitled 10 recover sale price from defendant no. 1.;the use of the car that he bud, was no part of the consideration that he had contracted for, which was the property in and lawful possession of the car whereas what he got was an unlawful possession which exposed him to the risk of an action at the suit of the true owner. there is an implied warranty of title in the case of the sale of goods and the come is on the seller to prove his title to the goods sold by him defendant no. 1 has felled to prove that he had title jo the truck end therefore in view of section 11 of the act, in my opinion, the learned district judge was right when he held that the plaintiff is entitled to recover from defendant.....s.k. mal lodha, j.1. this appeal by the plaintiff is directed against the judgment and decree of the district judge, sriganganagar dated september 13, 1967 decreeing the suit of the plaintiff in part for a sum of rs. 8500/- only against defendent-respondent no. 1.2. the facts giving rise to this appeal are these: the plaintiff instituted a suit against gurbux singh (defendant no. 1 respondent no. 1), mukhtiarsingh (defendant no. 2 respondent no. 2) and chandra finance limited (defendant no. 3 respondeot no. 3) for return of truck no. rjf 1276 or in the alternative for rs. 27,000/- consisting of rs. 8500/- as the price of truck, rs. 10,880.30/- as repair charges & rs. 8500/- as compensation, total rs. 27880.30 p out of which the plaintiff relinquished rs. 880.30 p. out of the compensation.....
Judgment:

S.K. Mal Lodha, J.

1. This appeal by the plaintiff is directed against the judgment and decree of the District Judge, Sriganganagar dated September 13, 1967 decreeing the suit of the plaintiff in part for a sum of Rs. 8500/- only against defendent-respondent No. 1.

2. The facts giving rise to this appeal are these: The plaintiff instituted a suit against Gurbux Singh (defendant No. 1 respondent No. 1), Mukhtiarsingh (Defendant No. 2 respondent No. 2) and Chandra Finance Limited (defendant No. 3 respondeot No. 3) for return of truck No. RJF 1276 or in the alternative for Rs. 27,000/- consisting of Rs. 8500/- as the price of truck, Rs. 10,880.30/- as repair charges & Rs. 8500/- as compensation, total Rs. 27880.30 p out of which the plaintiff relinquished Rs. 880.30 p. out of the compensation amount.

3. Defendant No. 1 filed a separate written.

4. The case of the plaintiff as disclosed in the plaint is that truck Not, PJF 1276 was registered in the name of Mukhtiarsingh defendant No. 2 in the Transport Department; that it initially it was registered in the name off General Finance, Pathankot and subsequently stood transferred in the name of Mukhtiarsingh on October 8, 1960 and that defendants Nos. 1 and 2 offered to sell this truck to him and represented that the truck, though registered in the name of Mukhtiarsirgh defendant No. 2, in fact belonged to Gurbux Singh defendant No. 1. His case further is that he was told that there was no encumbrance on the truck; that in the registration certificate, in the column relating to hire-purchase was blank; that the body of the truck was broken, the tyres and tubes were worn and that the machinery required repairs. The plaintiff alleged that the price of the truck was settled at Rs. 8500/- and after receiving the price, defendant No. 1 executed an agreement in his favour on July 10, 1963 which has been marked during the trial as Ex. 35 and that defendant No. 1 stipualated that he would get the truck transferred in his name within a month from the date of agreement Ex. 35. It appears from the plaint that after making payment of the price of the truck, delivery was taken of that very time. The plaintiff has further alleged that at the time of purchase as stated above, the truck was not in a fit condition and so, he had spent Rs. 10880.30 p. to make it in a plying condition. According to the plaintiff on January 29, 1964, Mukhtiarsingh defendant No. 2 came to him and took away the truck stating that he would get it transferred in his name in the office off the Collector, Sriganganagar; that the truck was not returned; that he came to know after words that Mukhtiarsingh defendant No. 2 had delivered it to the Official Receiver, Chandra Finance Ltd who had obtained a collusive decree against one Mohindersingh with a direction that the decretal amount would be recovered by the sale of the truck. The case of the plaintiff is that M/s Chandra Finance Ltd. defendant No. 3 had no interest in the truck and as such, it was not entitled to get it auctioned in its decree pasted against Mohindersingh On these grounds, the plaintiff prayed that a decree for return of the truck or in the alternative fur Rs. 37000/- be passed against all the Defendant No. 1 filed a separate written statement dated February 23, 1965. He pleaded that truck No. RJF 1276 was jointly purchased by him & his relatives Vichitrasingh and Mohindrasingh for Rs. 40,000/-. Towards its price, a sum of Rs. 10,000/- was only paid and the balance of Rs. 30,000/- vas to be paid in instilment. He further stated that Rs. 5000/- was paid by Mohindersingh. He case further is that the truck was registered in the beginning in the name of Mohinder Singh but subsequently was transferred in the name of Mikhtiarsingh defendant No. 2. He admitted to have put his thumb impression on the agreement Ex. 35 dated July 10. 1963 but alleged that he being an illiterate roan, was not aware of its contents. According to defendant No. 1, Mukhtiarsingh hid called him on the relevant date from his village and told him that he was selling the truck for Rs. 8500/- half of the cost of which would be given to him. Defendant No. 1 agreed to this proposal of Mukhtiarsingh defendant No. 2 and also received half of the amount of Rs. 8300/-. It is, therefore, clear from these averments that his defence is that he had neither received the entire amount paid by the plaintiff nor had he agreed to gat the trunk transferred in the name of the plaintiff within a month of the execution of the agreement Ex. 35. In this way, he denied his liability.

5. Defendant No. 2 in his written statement denied the plaintiff's claim in toto He showed his complete ignorance in respect of the agreement Ex. 35, His case was that he had a route permit for Ganganagar, Punjab and Delhi and as he hid no truck at that time, he had acceded to the request of defendant No. 1 Gurbuxsingh to get the truck in dispute transferred Banami and to ply it on his permit. He denied that he had taken the truck from the plaintiff & had entrusted the same to the official receiver of Chandra Finance Limited.

6. Defendant No. 3 Chandra Finance Limited also contested the suit by filing a separate written statement dated March 21, 1966. It denied the plaintiff's title over the truck and darned it to be its own property under hire-purchase agreement with Mohinder Singh. Its case was that it was rightly seized by the Delhi court and sold in auction in a decree against Mohindersingh It raised certain preliminary objections also, some of them areas under,

(1) that the suit was barred by the principle of res judicata as the question regarding the property in truck was finally decided in the arbitration proceedings arising out of the hire-purchase agreement and application under Sections 14 and 17 of the Arbitration acid decrees and execution thereof followed. The plaintiff has availed of Ms remedy in the court of Sub Judge, Delhi, precisely in the terms contained in the suit:

(2) that the suit does not lie as all the questions arising between the parries to the suit for which the decree was passed or their representatives and relating the execution of the decree were determined by the court executing the decree and cannot be agitated now by a separate suit;

(3) that the plaintiff claims title form the judgment-debtor. As against the decree-holder an application as representative of Judgment-debtor under Section 47 was filed as aforesaid and a fresh suit is barred for such relief;

(4) that the suit is barred by limitation;

(5) that Mohindersingh is a necessary party; and

(6) than the trial court had no jurisdiction to hear the suit.

7. On the aforesaid pleadings of the parties, the following issues were framed by the trial court:

1. Is the suit barred by the principle of res judicate?

2. Is the suit barred under Section 47, CPC.?

3. Has this Court no jurisdiction to hear this suit?

4. It is the suit time barred?

5. Does the plaint not disclose cause of action and so was liable to be rejected under Order 7 Rules 5 and 11, CPC

6. Is Mohindersingh a necessary party to this suit?

7. Did the defendants execute an agreement in favour of the plaintiff after receiving Rs. 8500/- from him as purchage money of the truck in dispute on 10.7.63?

8. Was the truck not in a working condition at the time of its purchage and the plaintiff spent Rs. 10880.30 Paisa over its repair?

9. Had defendant No. 2 taken away the truck from the plaintiff OK 291.64 with an excuse that he would get it transferred in his name and had then not returned the same to him?

10. Was the truck in dispute property of Chandra Finance Private Ltd., and was given to Mohindersingh on hire-purchage agreement and sp was legally and properly seized?

11. Did the defendant promise at the time of execution of the agreement that the truck would be transferred from Mukhtiarsingh's name to that of plaintiff within a month of the execution of the agreement?

12. Was defendant No. 2 an unnecessary party and so there was mis-joinder of parties in the suit?

13. Did Mohindersingh as special Attorney, General Transport Pathankot transfer the trunk in favour of Mukhtiarsingh Benami and Gurbuxsingh was its real owner?

14. Was the plaintiff esitled to recover Rs. 7419.30 as damages?

15. Was the plaintiff entitled to received the truck back?

16. Relief.

The plaintiff examined PW 1 Randhirsingh, PW 2 Nilkhiram, PW 3 Darbara Singh, PW 4 Sohan Singh, PW 5 Balkishan, PW 6 Kishankumar PW 7 Om Prakash PW 8 Keharsingh PW 9 Balaram and PW 10 Jorasingh. The defendants examined DW 1 Gurbuxsingh and DW 2 Mukhtiarsingh. The plaintiff's documents are Ex. 1 to Ex. 37. On behalf of the defendants, nine documents have been exhibited. The learned District Judge vide order-sheet dated September 20, 1966 overruled the objection raised on behalf on the plaintiff with respect of Ex. A5 to Ex. A9 and hold that these documents do not required any further proof. This order of the learned District Judge has not been challenged by any party before me.

8. The learned District Judge, Sriganganagar, by his judgment dated September 13, 1967 partly decreed the suit in favour of the plaintiff and against defendant No. 1. He found that the plaintiff is entitled to recover from defendant No. 1 a sum of Rs. 8500/- only and that defendants Nos. 2 and 3 are not liable to pay any amount to the plaintiff. The suit was, therefore, dismissed against the defendants Nos. 2 and 3 with costs. The plaintiff's claim regarding Rs. 18,500/- against defendant No. 1 was also dismissed with costs.

9. Being dissatisfied, the plaintiff has filed this appeal praying that the decree of the trial court may be modified and the suit be decreed in toto against ail the defendants and he may further be awarded a decree for the return of the truck against them or in the alternative, a decree for Rs. 27,000/- against all the defendants. Respondent No. 1 Gurbuxsingh filed cross-objection under Order XLI, Rule 22, CPC with a prayer that decree for Rs. 8500/- passed in favour of the plaintiff and against him may be set aside.

10. It will be useful to summarise here the findings of the learned District Judge. He decided issues Nos. 1 and 2 against the defendants. He held that the plaintiff was not a party to the execution and so hit claim was under Order XXI. Rule 58 CPC and as such. Section 47 CPC does not operate as a bar so far as the suit out of which this appeal has arisen is concerned Issues Nos. 3, 4, 5 and 6 were not pressed by the defendants and there fore, they were decided against them. Issues Nos. 7 and 11 were discussed together and it was found that defendant No. 1 executed agreement Ex. 35 in favour of the plaintiff after receiving Rs. 8500/-as price of the truck in dispute and he agreed that he would get it transferred in the plaintiff's name within a month of execution of the agreement In connection with issues Nos. 8, it was held that the plaintiff had incurred Rs. 10,880.30 p. en repairs of the truck and thus, this issue was decided in favour of the plaintiff. Issue No. 9 was decided against the plaintiff holding that it has not been proved that defendant No. 2 Mukhtiarsingh had taken away the truck in dispute from the plaintiff on January 29, 1964. So far as issue No. 10 is concerned, the learned District Judge opined that though it is not proved that defendant No. 3 had proprietary rights in the truck in question, yet it was proved that it was legally and properly seized in execution of the decree which was passed in favour of defendant No. 3. Issue No. 12 was not pressed by the learned Counsel for the defendants and therefore, it was decided against defendant No. 2. While deciding issue No. 13, the learned Judge found that it was proved that General Transport, Pathankot, had transferred the truck to Mukhtiarsingh Benami and Gurbuxsingh was its real owner. Issue No. 14 was decided against the plaintiff on the ground that plaintiff was not successful in proving that he had suffered any damages due to the breach of conditions mentioned in Ex. 35. Issue No. 15 was also decided against the plaintiff. The reason given by the learned District Judge is this connection is that the plaintiff has not become the owner of the truck and since he has not become the owner, it was legally seized in execution of the decree in favour of defendant No. 3 and, therefore, the plaintiff was not entitled to receive the truck back. The learned District Judge partly decreed the suit for Rs. 8500/- against defendant No. 1 being the cost of the truck that was paid to him.

11. I have heard the learned Counsel for the parties and have also gone through the record of the case with requisite care.

12. It will be convenient to deal with the cross-objection of defendant No. 1 (respondent No, 1) Curbuxsingh first.

13. Mr. Purohit, learned Counsel for respondent No. 1, contended that in view of the finding in respect of issue No. 7 by the trial court that it is proved that defendant No. 1 executed the agreement (Ex. 35) dated July 10, 1963 in favour of the plaintiff, after receiving Rs. 8500/- as price of the truck in dispute and he had agreed that he would get it transferred in the name of plaintiff within a month from the date of execution of agreement the decree passed by the learned District Judge for a sum Rs. 8500/- against defendant No. 1 is not sustainable. He urged that by mean of the agreement (Ex. 35), the plaintiff had become absolute owner of the truck. As he wm a full-fledged owner, until and unless the transfer by means of agreement Ex 35 is declared void, the seller (defendant No. 1) is not liable Ha submitted that at the most the breach that was committed by defendant No. 1, was that he did not get the truck transferred in the plaintiffs name within a month. Under Section 31 of the Motor Vehicles Act, defendant No. 1 was only required to inform the registering authority that the vehicle has been sold. The plaintiff was required to produce the registration certificate before the registering authority and if there would have been any objection on behalf of defendants Nos. 1 and 2, then certainly they could be hold guilty of the breach It is not the case of the plaintiff that defendants No. 1 and 2 obstructed of getting the transfer affected After making reference to the statement of PW 1 Mandhirsingh, learned Counsel argued that there is nothing in his statement to show that he applied for transfer After referring to the content of the agreement (Ex. 35), learned Counsel submitted that consequence of not getting the truck transferred in the plaintiff's name was provided in the agreement it-elf and it is that the plaintiff was entitled to get back Rs 8500/-being the purchase price paid by him and a like amount as damages According to him, one month's time mentioned in the agreement (Ex. 35) was not an essence of the contract In this connection, he invited my attention to paras 5 and 6 of the plaint and Ex. 2 to 34 pertaining to the period from August 21, 1963 to January 6, 1964. In the alternative, he submitted that even if the time was casence of the contract, it became voidable at the instance of the plaintiff. The plaintiff did not exercise his option and, therefore, transfer made in his favour continued Learned Counsel submitted that according to second para of Section 55 of the Contract Act, the plaintiff is only entitled to compensation from defendant No. I for any loss occasioned to him by failure of the defendants to get the truck transferred in the name of plaintiff. On the basis of the aforesaid premises, he contended that the plaintiff is not entitled to claim refund of the price paid by him to defendant No. 1.

14. Mr. Rajendra Mehta, on the other hand, argued that defendant No. 1 had no right to sell the truck, that representation of defendant No. 1 that he is the sole owner of the truck has been found to be false and that in fact, real owner of the truck was Mohindersingh. He submitted that Mohindersingh was the judgment-debtor, M/s Chandra Finance Ltd. (Defendant No. 3) was decree-holder and that Mathra Dass was the guarrantor, After referring to the documents : (1) certified copy of the reply (objections) filed by defendant No. 3 Ex A5, (b) certified copy of judgment passed by sub-Judge, Delhi in civil suit No. 475 of 63 (Ex A-7) and (c) certified copy of the award dated November 14, 1963, learned Counsel submitted that in view of these documents, it does not lie in the month of defendant No. 1 to say that he is not liable to return the purchase money.

15. In these circumstances, the first question that I am called upon to determine is whether defendant No. 1 is liable to return the tale price of Rs. 8500/- to the plaintiff or not The execution of agreement Ex. 35 is admitted by defendant No. 1, PW 1 Randhirsingh (plaintiff) has stated that before the sale of the truck, defendants Nos. 1 and 2 had preliminary talks with him in regard to the sale of the truck and that it was represented to him that defendant No. 1 is the owner and defendant No. 2 is Benami. Mukhtiarsingh was examined by the trial court. He has stated that Mohindersingh, Vichitrasingh and the plaintiff had a truck in partnership, which they used to ply in Punjab, that Mohindersingh was Manager of the General Transport Pathankot, that he obtained a permit for the route of Ganganagar, Punjab and Delhi; that Mohindersingh came to him and told him that he had a truck and, therefore, he should handover his permit to him. He has further deposed that thereupon, he told Mohinder Singh that he may ply the truck on this permit, that when he would get the truck then he would ply on it and that Mohindersingh plied the truck on this permit, which was locked after by defendant No. 1. He has also deposed that fee did nut enter into and transaction of sale with the plaintiff and that he bad not received any money from the plaintiff. Agreement Ex. 35 has not been executed by defendant No. 2 Mukhtiarsingh. It is, therefore, clear that there is nothing on the record to show that defendant No. 2 Mukhtiarsingh hd sold the truck to the plaintiff or agreed to the terms and conditions mentioned in agreement Ex 35.

16. The learned District Judge, while deciding issues Nos. 7 and 11 therefore, rightly held that defendant No. 1 had promised to get the truck registered in his name within a month and had agreed to the terms and conditions mentioned in agreement Ex. 35 as it was executed by him. From the perusal of the statements of PW 1 Randhirsingh (Plaintiff) 2 DW 1 Gurbux Singh (defendant No. 1), DW 2 Mukhtiarsingh (defendant No. 2) and agreement Ex. 35, it is clear that Gurbuxsingh executed agreement Ex. 35 in favour of the plaintiff after receiving Rs. 8500/- as price of the truck and had agreed that he would get it transferred in the plaintiff's name within a month from the execution of agreement Ex. 35. It will be useful here to extract the relevant portion of agreement Ex. 35, which was executed by defendant No. 1 in favour of the plaintiff.

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The sale price of Rs. 8500/- was paid by the plaintiff to defendant No. I and nothing remained outstanding Defendant No. 1 also undertook to get the truck transferred within a month from the date of the execution of agreement Ex. 35, otherwise to pay compensation as stipulated therein. It is admitted in para 1 of the written statement, submitted by defendant No. I that the truck was registered in the name of Mohindersingh and that Mohindersingh got is transferred in the name of defendant No, 2 Mukhtiarsingh. He has stated that the truck was not registered in his name in the Transport Department & that it was registered in the name of Mohindersingh or defendant No. 2 Mukhtiarsingh. In para 7 of the written-statement, he has shown his ignorance as to how Mohindersingh used to ply the truck in Pathankot and further as to how defendant No. 2 Mukhtiarsingh, used to ply in Ganganagar. In his statement DW 1 Gurbuxsingh has admitted that the truck was registered in the name of Mohindersingh and after that, Mohinder Singh sold it to Mukhtiarsingh. He has shown his ignorance as to when Mohindersingh sold the truck and on what conditions to Mukhtiarsingh. He admitted that Mohindersingh did not pay any amount to him. He has stated in the cross-examination that when the truck was sold to defendant No. 2, he was not present and that he has also not seen any writing in regard to it. It is clear from the award Ex. A9 that Mohindersingh and his guarantor Mathra Das were both liable to pay to her defendant No. 3 Rs. 23,143/-. It is further clear from the Judgment Ex. A-7 dated Sept. 28 1964 that the award Ex. A-9 dated November 14, 1963 was made rule of the court and decree was passed against Mohindersingh and that the does were to be recovered by sale of the(sic)uck seized under court orders from Mukhtiarsingh which was subject of hire purchase agreement. The truck was sold in execution of the decree obtained by defendant No. 3 against Mohindersingh whose guarantor was Mathra Dass. The truck belonged to Mohindersingh, or for the matter, to Mukhtiarsingh (defendant No. 2) and No. 1 wrongly represented that he is the real owner of the truck and defendant No. 2 is merely Bename. In these circumstances, the learned District Judge, while deciding issue No. 13 was not right in holding that defendant No. 1 Gurbux Singh was real owner of the truck thought in the agreement Ex. 35, he represented himself to be the real owner of the truck and that defendant No. 2 Mukhtiarsingh was Benami Section 14 of the sale of Goods Act (No. III of 1930) (hereinafter referred to as 'the Act') provides for implied undertaking as to title etc. It runs as under:

14. In a contract of sale, unless the circumstances of the contract are such as lo show a different intention, these is-

(a) An implied condition on the part of that seller that in the case of a sale, he has a right to sell the goods and that in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass;

(b) An implied warranty that the buyer shall have and enjoy quiet possession of the goods;

(c) An implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party mot declared or known to the buyer before or at the time when the contract is made.

Whenever a man sells goods as owner. he immediately undertakes that the goods are his own goods, and that he has right to make the sale he professes to make; and, if he was not the owner at the time of the sale, and was not soling his own goods but the goods of a third party, who subsequently claims them and deprives the purchaser of them, he is responsible in damages for the breach of such implied undertaking. Thus, there was an implied undertaking on the part of defendant No. 1 at the time of the sale of the truck by means of agreement Ex. 35 dated July 10, 1963 that the truck was free from any charge or encumbrance. It was wrongly represented that he is the real owner of the truck and that the name of defendant No. 2 is merely Benami. Defendant No. 1 had no title to use truck and it was seized in proceedings for recovery of money against Mohindersingh and, thus, when it was seized, it was an involuntary surrender. It was therefore, a total failure of consideration, and the plaintiff is entitled to get the purchase money back. Section 14 of the Act is reproduction of Section 12 of the English Sale of Goods Act, 1893. In Rowland v. Divall AIR 1967 SC 1930, the plaintiff' bought a motor car from the defendant and used it for several months. Subsequently, it appeared that the defendant had had no title to it, and the plaintiff was competed to surrender it to the true owner. The plaintiff sued the defendant to recover back the purchase money that he had paid, as on a total failure of consideration. It was held that, notwithstanding that he had the use of the car the consideration had totally failed, and he was entitled to get the purchase money back. The use of the car that he had, was no part of the consideration that he had contracted for, which was the property in and lawful possession of the car whereas what he got was an unlawful possession which exposed him to the risk of an action at the suit of the true owner. There is an implied warranty of title in the case of the sale of goods and the onus is art the seller to prove his title to the goods sold by him. Defendant No. 1 has failed to prove that he had title to the truck and therefore, in view of Section H of the Act, in my opinion, the learned District fudge wm right when fee held that the plaintiff is entitled to recover from defendant No. 1 a sum of Rs. 8500/- which was paid by the plaintiff to defendant Now 1 as sate-price of the truck in question. In this view of the matter, I find no substance in the cross objection preferred by defendant No. 1.

17. Learned Counsel appearing far the plaintiff appellant has assailed the findings an issues Nos. 9, 10, 14 and 15 in this appeal before me.

ISSUE No. 9 :

18. The burden of this issue is on the plaintiff In para 6 of the plaint, it was mentioned that on January 29, 1964, defendant No. 2 Mukhtiarsingh came to the plaintiff at noon and took away the truck telling him that after taking it the office of the collector, Gangangar, who is the registering authority, he would take steps for transferring it to his name and upto Feb. 3, 1964 the truck was not returned by defendant No. 2 to the plaintiff Defendant No. 1 showed his ignorance respect of the aforesaid allegations made by the plaintiff. So far as defendant No. 2 is concerned, he denied that he took away the truck on January 29, 1964 as alleged by the plaintiff. He, however, stated in para 7 of the written-statement that he had come to know then that on January 29, 1964, the Official Receiver, Delhi with the half of the police and in pursuance of the order of the Court, seized the truck from the possession of the plaintiff when it was at the petrol pump of Hemraj Baila, Sriganganagar. Defendant No. 3 repudiated the contents of para 6 of the plaint and stated that the plaintiff had never been the owner of truck No. RJF 1276. In order to prove issue No. 7, the plaintiff as PW 1 Randhirsingh has stated that on January 29, 1964, when the truck was standing at Bhatia Petrol Pump, defendant No. 2 Mukhtiarsingh took key from him telling him that after showing it in the court, he would got it transferred in his name and, thereafter, he did not return it. He has also stated that at the time when he purchased the truck, he (defendant) agreed to get it transferred in his (plaintiff's) name. The plaintiff has examined PW2 Milkhiram who has stated that defendant No. 2 Mukhtiarsingh demanded key from the plaintiff in his presence and told the plaintiff that the truck was to be shown at some office and the truck at that time was standing at Bhatia Patrol Pump. DW 2 Mukhtiarsingh has appeared as a witness to rebate this evidence. He has deposed that the truck was looked after by defendant No. 1 Gurbuxsingh and he had nothing to do with its ownership. After the sale in auction the plaintiff has submitted a claim (its certified copy has been marked as Ex. A3) in the Court of the Sub-Judge, First Class, Delhi praying therein that the auction of the truck made by the Court may be set aside. There is no documentary evidence placed on record by the plaintiff for showing that the truck was seized from the possession of DW 2 Mukhtiarsingh. In this state of evidence, the learned District Judge rightly came to the conclusion that the plaintiff-appellant has failed to prove that defendant No. 2 Mukhtiarsingh had taken away the truck in dispute from the plaintiff on January 29, 1964. The finding of the learned District Judge in this regard is, therefore, confirmed.

ISSUE No. 10

19. The learned District Judge found that it has not been proved that defendant No. 3 bad proprietary light in the truck in dispute but he, however, held that it was legally and properly seized in a suit by defendant No. 3 M/s Chandra Finance Limited, New Delhi. In para 2 of the written-statement filed by defendant No. 3, it was stated that the truck was the property of this defendant under hire purchase agreement with Mohinder Singh although plying on the route permit of Mukhtiarsingh Defendant No. 3 did not produce any oral evidence The burden of proving this issue was on defendant No. 3. In order to discharge this burden, defendant No. 3 has produced the certified copy of the order dated May 1, 1965 (Ex. A6) made on the application (Ex. A3), of the plaintiff under Section 47, Order XXI, Rules 52, 58, 69, 99 read with Section 151, CPC which was filed by him in the court of the Sub-Judge, First Class Delhi; certified copy of the judgment (Ex A7) dated September 28, 1964. The judgment (Ex. A7) shows that the award dated November 14, 1963 the certified copy of which is Ex. A9, was made rule of the Court. Defendant No. 3 did not produce any oral evidence as such hire-purchase agreement which was produced, has not been proved It is true that the plaintiff preferred claim under Order XXI, Rule 58 etc, CPG It is also admitted that no suit under Order XXI, Rule 63, CPC was tiled which provides that where a claim or an objection is preferred, the party against whom an order is made, may institute a suit no establish the right which he claims to the property in dispute but subject to the result of such suit if any, the order shall be conclusive. It is clear from the certified copy of the order Ex A5 that the claim was preferred by the plaintiff and it was dismissed. The effect of not filing a suit under Order XXI, Rule 63. CPC after the dismissal of the claim or objection preferred under Order XXI, Rule 58 CPC is that it is conclusive against the particular attachment against which the claim was preferred. It was held in Mungru Mahto a. Thakur Taraknathji AIR 1967 SC 1930 that the effect of Rule 63 is that unless a suit is brought as provided by the rule, the party against whom the order in the claim proceeding is made or any person claiming through him can not re-agitate in any other suit or proceeding against the other party or any person claiming through him, the question whether the property was or was not liable to attachment & sale in execution of the decree out of which the claim proceeding arose, but the bar of Rule 63 extends no further It is, therefore, clear that in view of the order Ex A6 passed against the plaintiff in the claim proceeding and his failure to institute a suit under Order XXI, Rule 63, he is pro-eluded from challenging the validity of the attachment and seizure proceedings in the present suit. Therefore, the plaintiff cannot question the legality and propriety of the attachment and seizure. For these reasons, decision on issue No. 10 calls for no interference by this Court.

ISSUE No. 8

20. The next question that arises is whether the plaintiff is entitled to get from defendants Nos. 1 and 2, an amount of Rs. 10, 880.30 p which he spent on the repairs of the truck. It may be stated that the trial court has while deciding issue No. 8, held that the plaintiff had spent Rs. 10,880.30 p. on the repairs of the truck, but he, declined to decree this sum as according to it, the plaintiff had not become the owner of the truck and that it is not his case that he had spent this amount over the truck with the consent of defendant No. 1. The plaintiff has produced the bills Ex. 1 to Ex 34. In para 8 of the plaint, he has mentioned that sum of Rs. 10.880.30 was spent in making body of the truck, tis reapirs and replacement of certain parts. He has proved bills Ex. 1 to Ex. 34 and has deposed that amounts mentioned in these bills were spent on the truck and they were paid by him. He has examined PW 3 Darbarsingh, PW Balkishan, PW Krishankumar, PW 7 Omprakash. PW 8 Kehersingh, PW 9 Malaram and PW 10 Jorasingh. These witnesses have corroborated the statement of the plaintiff. No evidence was let by the defendants to (sic) the plaintiff's statement and the bils Ex. 1 to Ex. 34. In these circumstances, the learned District Judge was right in holding that the plaintiff has incurred Rs. 10,880.30/- p. on repairs of the truck. I have already held that defendant No. 1 was not the owner of the truck and, therefore, he could not convey good title to the plaintiff. As held above, there was a total failure of consideration so far as the sale of struck to the plaintiff is concerned. In these circumstances, the question that now arises is whether the plaintiff is entitled to the amount spent by him on repairs etc. of the truck under Section 73 of the Contract Act. Learned Counsel for the appellant vehemently argued that in view of the provisions contained in Section 59 of the Act read with Section 73 of the Contract Act, the plaintiff it entitled to the amount spent by him on the truck as he spent the amount on it for using it and was deprive of its use. As the truck was seized in a suit against Mohindersingh, defendant No. 1 is not in a position to return the truck to the plaintiff. In support of his argument, learned Counsel placed strong reliance on Manson v. B(sic)ghem 1949 (2) All. FR 134.

21. From the statement of PW 1 Randhirsingh, it is clear that when talks for selling the truck were going on, the body of the truck was broken and the tyres and tubes were worn and its machinery was 'Nasuk' and therefore, the transaction was settled for Rs. 8500/- only. The plaintiff in para 4 of the plaint has stated that after taking possession of the truck and the registration certificate, the plaintiff got prepared new body of the truck in place of broken one, got the machinery repaired by fitting new parts and purchased new tyres. Defendant No. 1 Gurbuxsingh in reply to para 4 of the plaint has merely stated that he did not deliver possession of the truck to the plaintiff as the truck was not in his possession. With respect to the other facts stated by the plaintiff in para 4, he has not admitted them for want of knowledge. So also, defendant No. 2 Mukhtiarsingh in his written-statement denied para 4 of the plaint because of want of knowledge. Defendant No. 3 M/s Chandra Finance Ltd. Has denied the facts stated by the plaintiff in para 4 of the plaint and has, of course, stated that the plaintiff never replaced the body, never repaired the machinery tyres or parts or has spent Rs. 10.880.30 p. thereon.' The plaintiff, in his statement has proved, as stated above, that he has spent a sum of Rs. 10,880.30 p. Gurbuxsingh and Mukhtiarsingh have not said a word of about the condition the truck at the time of purchase by the plaintiff nor have they stated that the amount as alleged by the plaintiff was not spent by him. I have already held a above that defendant No. 1 wrongly represented that he is the owner of the truck and defendant No. 2. Mukhtiar Singh it Benami. As defendant No. 1 Gurbuxsingh had no title to the truck, the plaintiff is entitled to recover back the purchase money that he has paid as the consideration had totally failed.

22. Under Clause (b) of Section 14 of the Act, where the buyer has obtained possession of the goods and his right to possession and enjoyment of the goods is in any way disturbed, he has a right to sue the seller for damages so caused, unless the circumstances of the contract are such as to show a different intention. It is, therefore, clear tin at if the title is defective, the buyer may, under Clause (a) reject the goods but if he has accepted them and is afterwards disturbed, he has under Clause (b) his remedy by action for breach of the warranty of quiet possession, the right of action arising on disturbance. Section 59 of the Act deals with remedy for breach of warranty. In ease of breach of warranty, are action far damages can be brought. Section 59 is analogous to Sub-sections (1) and (4) of Section 53 of the English Sales of Goods Act, 1893. The provisions affection 53 of the English Act relating to measure of damages are omitted from the present Section 59 of the Act as Sections 73 and 74 of the Contract Act contain general provisions as to the measure of damages on a breach of contract which apply to contracts for the sate of goads equally with other contracts. It will be useful here to refer to Sub-section (2) of Section 53 of the English Act relating to measure of damages,-

(2) The measure of damages for breach of warranty is the estimated logs directly and naturally resulting in the ordinary course of events from the breads of warranty.

Section 73 of the Contract Act reads as under:

73. When a contract has been broken, the party who suffers such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge is to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract.

Explanation - In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused fey the non-performance of the contract rarest be taken into account.

The provisions of Section 59 of the Act are controlled in matters of quantum of damages by the provision of Section 73 and 74 of the Contract Act. In these circumstances, a serious question that arises for determination is whether the amount of Rs. 10,880.30 p. spent by the plaintiff on the truck has naturally arisen in the usual course of things from the breach of warranty within the meaning of Section 59 of the Act and, therefore, the plaintiff is entitled to recover the same. In Manson's case, the plaintiff bought a second hand typewriter from the defendant for 20 and spent's 11 10s in having it overhauled. Later, the typewriter was found to have been stolen and the plaintiff brought on action against the defendant claiming the repayment of the purchase price less a sum of 10 which had been repaid on account, and also the sum of E 11 10s as damages for breach of warranty. Amonght others, the question arose whether the plaintiff was entitled to a sum of 10 10s spent by him for overhauling the typewriter. It was held, that under Section 53(2) of the English Sale of Goods Act, 1993, the plaintiff was entitled to recover that sum. In Monson's case 1949 (2) All. FR 134, Bunny v. Hopkinson 89 L.J. Ex. Ch. 93 and Rolph v. Cromuch 37 L.J. Ex. 8 were also noticed, Singlation, L.J. observed as under:.Damages have to be assessed under Section 53(2) of the Sale of Goods Act, 1893, and those damaged, resulting from the breach of warranty on the part of the seller, would have been, if there had been no payment on account, the total amount of f 20 which the plaintiff paid for the typewriter and the amount which she 'rightly' and 'properly' and 'naturally' expended to have it overhauled & put in proper order. The learned county court judge, in my view, approached this matter from the wrong angle. He ought to have held that the plaintiff was entitled to the sum of E11 10s., which was the balance remaining due. The judgment should be set aside and judgment entitled for the plaintiff.

The plaintiff had spent the amount of Rs. 10880.30 p. on the truck as defendant No. 1 in the agreement Lx. 35 represented that he is the real owner of the truck and defendant No. 2 Mukhtiarsingh is Benami by getting a new body prepared, replacing the worn tyres and getting the machinery repaired. The plaintiff did ordinary and natural thing which the owner of the truck could do. It, therefore, fellows that the amount spent in doing the ordinary and natural thing is covered by the words 'Compensation for any loss or damage caused thereby which naturally arose in the usual course of things from such breach'. In Bengal Corporation v. Commissioners for the Fort of Calcutta AIR 1971 Cal. 357, it was held that Section 59 of the Act clearly postulates that even when a buyer has accepted the goods, he is entitled to set up against the seller a breach of warranty in diminution or extinction of the price or to sum the seller for damages for breach of warranty. There was an implied warranty as stated above that the plaintiff-buyer shall have and enjoy quiet possession of the truck which he could not be because the truck did not belong to defendant No. 1 and that was seized and attached by defendant No. 3. Therefore, the turn of Rs. 10,880.30 p. spent by the plaintiff on the truck was a lose caused to him which naturally arose in the usual course of things from the breach Relying on Manson's case 1949 (2) All. FR 134 I am of opinion that the plaintiff is entitled to recover from the defendant No. 1 Rs. 10,880.30 p. on account of the breach of warranty under Section 59 of the Act read with Section 73 of the Contract Act,

ISSUE No. 14:

23. Now I take up issue No. 14. The plaintiff-appellant has claimed compensation to the tune of Rs. 7419 30 p. According to him it was stipulated that defendant No. 1 would pay compensation to the tune of Rs. 8500/- in case of breach of contract. He has relinquished the claim of Rs. 880.30 p. (the calculation is wrong) for, after relinguishing Rs. 880.30 p. from Rs. 8500/-, the remainder does not come to Rs. 7419.30) in the plaint. The contention of the learned Counsel for the plaintiff is that the amount of Rs. 8500/- is mentioned in the agreement Ex.35 and, therefore, he is not required to prove the quantum of damages. He invited my attention to Section 74 of the Contract Act which provides for compensation for breach of contract where penalty is stipulated. Learned Counsel submitted that he is entitled to the sum which is named in the agreement Ex. 35 whether or not the actual demage or loss is proved to have been caused or not. Section 74 recognises the right to reasonable compensation on breach of contract and not the entire amount which is mentioned in the contract which he should prove The case of the plaintiff is that defendant No. 1 did not get the truck transferred in his name within a months as agreed to by him in the agreement Ex. 35. The truck was attached and seized to at the instance of defendant No. 3 in a suit against Mohindersingh. The plaintiff preferred objection under Order XXI, Rule 58 etc. CPC. The objection was dismissed. As held by me above, while deciding issue No. 10, that since he failed to institute a suit under Order XXI, Rule 63, CPC he is precluded from challenging the validity of the attachment proceedings in the present suit. He has also failed to prove that defendent No. 2 took away the truck from him on January 29, 1964 with an excuse that he would get it transferred in his name and had not returned the same to him. Even without transfer, the truck remained in his possession from July 10, 1963 to January 29, 1964, the date when it was seized. The plaintiff did not file any application before the registering authority as required by Section 31 of the Motor Vehicles Act that the ownership may be entered in the registration certificate. The plaintiff is not entitled to any damages due to the breach of condition mentioned in the agreement Ex. 35. Issue No. 14, therefore, has rightly been decided by the learned District Judge against the plaintiff.

ISSUE No. 15

24. The only issue that remains for my consideration as issue No. 15. In view of the findings arrived at by me in respect of issues Nos. 9 and 10, the plaintiff is not entitled to a decree for return of the truck as after the seizure of the truck and dismissal of his objection under Order XXI, Rule 58, CPC, he did not institute a suit under Order XXI, Rule 63 CPC. The result is that he cannot question the legality or propriety of attachment and seizure of the truck made at the instance of defendant No. 3 in a suit against Mohindersingh The learned District Judge was, therefore, right in holding that the plaintiff is not entitled Jo receive the truck back Issue No. 15 was, therefore, correctly decided against the plaintiff by the learned District Judge.

25. The upshot of tire above discussion is that defendant No. 1 (respondent No. 1.... Gurbuxsingh) is laible to pay Rs. 10.880.30 p. to the plaintiff being the amount spent by the plaintiff on the truck as damages on account of breach of warranty in addition to Rs. 8500/- being the amount of purchase money paid by the plaintiff of defendant No. 1

26. The result is that the appeal of the plaintiff is allowed in part and the judgment and decree of the trial court is modified and decretal amount is enhanced from Rs. 8500/- to Rs. 19,880.30 p. The dismissal of the suit against defendant Nos. 2 and 3 is maintained. The dismissal of the suit by the trial court for the return of the truck and damages to the tune of Rs. 7419.30 p. is also maintained. The cross-objection preferred by defendant No. 1 is dismissed. The plaintiff will be entitled to get the costs of the suit as well as of this appeal according to his success in this Court from defendant No. 1 respondent No. 1 Defendant No. 2 will be entitled to the costs of both the courts from the plaintiff. There will be no order as to costs so for as defendant No. 3 respondent No. 3 is conserved for nobody has operated on its behalf to oppose the appeal.


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