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2000 DIGILAW 49 (HP)

KARAM CHAND v. PUNJAB NATIONAL BANK

2000-03-23

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.: The plaintiff has filed the present suit against the seven defendants claiming the following reliefs : (a) delivery of truck No. HIH-2046 plus Rs. 1,00,000/- as compensation for restoring the truck to its original position or in the alternative for recovery of Rs. 3,50,000/- being the price of the truck; (b) mesne profits at the rate of Rs. 10,000/- per month from 13.7.1991 till the date of the suit besides future mesne profits at the rate of Rs. 10,000/- per annum till the truck is restored back; (c) costs of the suit; and (d) any other or further order which the Court may deem fit and proper on the facts and in the circumstances of the case. 2. Briefly, the facts leading to the present suit may be thus stated. The plaintiff Karam chand, obtained a loan of Rs. 1,60,000/- from New Bank of India which subsequently came to be merged with Punjab National Bank, for the purchase of a truck. The truck was purchased by him on 17.2.1987 for a sum of Rs. 2,38,200.60 paise from Messrs Metro Motors, Ambala Cantt. A further sum of Rs. 30,000/- was spent by the plaintiff towards the building of the body of the truck and fitting of other accessories, which work was got carried out from Mess Indian Truck Body Builders, Railway Road Sirhind on 20.3.1987. Another sum of Rs. 4,000/- was paid towards excise duty. For the purpose of running the truck, the plaintiff got the route permit of his brother late Shri Kishan Chand Sharma, the predecessor in interest of defendants No. 3 to 7, in his favour. The truck was registered at No. HIH- 2046 in the name of the plaintiff on 27.3.1987. The vehicle was also got insured by the plaintiff for the year 1987-88, 1988-89, 1989-90, 1990-91 and 1991-92. 3. In all the documents pertaining to the loan, the name of the plaintiff was mentioned as K.C. Sharma and he had signed all such document as K.C. Sharma. However, the driving license furnished by the plaintiff to the bank at the time of applying tor loan, contained the full name of the plaintiff as Karam Chand Sharma. The plaintiff had pledged his fixed deposit receipt for a sum of Rs. 68,100/- in favour of the bank as security for the repayment of loan. However, the driving license furnished by the plaintiff to the bank at the time of applying tor loan, contained the full name of the plaintiff as Karam Chand Sharma. The plaintiff had pledged his fixed deposit receipt for a sum of Rs. 68,100/- in favour of the bank as security for the repayment of loan. In this fixed deposit receipt full name of the plaintiff was mentioned. Defendant No. 3 Smt. Nirmala Devi was the guarantor for the plaintiff. The entire loan amount aJongwith interest was duly paid by the plaintiff to the bank. 4. Shri Kishan Chand Sharma, the brother of the plaintiff and predecessor-in- interest of the defendant No. 3 to 7 died on 16.7.1988. The defendants 3 to 7 taking advantage of the name K.C. Sharma as mentioned in various documents pertaining to the loan and the truck connived with defendant No. 2, the then Branch Manager of the defendant No. 1 Bank mid applied for the transfer of the truck in their favour by averring that the original registered owner "K.C. Sharma" (Kishan Chand Sharma) had died. Alongwith the application made to Registration Authority, Hamirpur, defendantNo. 3 to 7 and annexed a copy of the death certificate in respect of Shri Kishan Chand Sharma and a "No Objection Certificate" issued by defendant No. 2 in favour of Shri Kishan Chand Sharma. On the basis of such certificates, the Registering Authority, Hamirpur, transferred the truck HIH 2046 in the name of defendants No. 3 to 7. On the basis of such change of registration in their favour, defendants No. 3 to 7 on 13.7.1991 forcibly seized and took possession of the truck from Shri Ashok Kumar, the driver employed by the plaintiff. A report in this regard was duly made to the police on the basis of which a case was registered. In order to stall the investigation of the case, defendants No. 3 to 7 field a suit before the Senior Sub Judge, Mandi, for permanent injunction for restraining the plaintiff from interfering in any manner with the use of the truck by them as owners thereof. In order to stall the investigation of the case, defendants No. 3 to 7 field a suit before the Senior Sub Judge, Mandi, for permanent injunction for restraining the plaintiff from interfering in any manner with the use of the truck by them as owners thereof. In such suit, being Civil Suit No. 50 of 1991 an interim order was passed on 9.9.1991 in the following terms :- (a) the defendants No. 3 to 7 were directed to maintain the truck HIH-2046 in its proper working condition and they shall take care while maintaining the truck as is required from a prudent man; (b) the defendant No. 3 to 7 shall not dispose of the truck, any part thereof, mortgage, sell or hypothecate the same during the pendency of the suit; (c) the defendants shall maintain log-book regularly; (d) A joint account in the name of both the parties shall be opened in the Nationalised Bank at Mandi, wherein on every first week of the month the benefits received from the truck shall be deposited and no party shall be entitled to withdraw the amount from the bank without the prior permission of the Court; (e) The defendants No. 3 to 7 shall furnish surety bond to the tune of Rs. 1,00,000/- for producing the vehicle in court as and when called upon to do so; and (f) The defendants No. 3 to 7 shall allow and permit the plaintiff to inspect the Log Book, the accounts and the truck two times in month. 5. The above referred to suit was ultimately dismissed in default under Order 9 rule 8, Code of Civil Procedure, on 24.8.1992. 6. The plaintiff thereafter on 30.11.1992, filed the present suit claiming the reliefs as aforesaid. 7. Defendant No. 1 -Bank while resisting the suit admitted that loan for the truck was applied for by and the same was sanctioned in favour of the plaintiff, who had signed various documents as K.C. Sharma. It was also admitted that the entire loan was repaid by the plaintiff. Conni vance of defendant No. 2 with defendant No. 3 to 7 was denied and it was pleaded that the "No Objection Certificate" in favour of Shri Kishan Chand Sharma, might have been issued by defendant No. 2 under a bona fide mistake. It was also admitted that the entire loan was repaid by the plaintiff. Conni vance of defendant No. 2 with defendant No. 3 to 7 was denied and it was pleaded that the "No Objection Certificate" in favour of Shri Kishan Chand Sharma, might have been issued by defendant No. 2 under a bona fide mistake. Objection was raised as to misjoinder of defendant No. 1 and 2 and it was pleaded that the plaintiff did not have any enforceable cause of action against them. It was also pleaded that the suit was barred by time and that the plaintiff was estopped from filing the suit. 8. Defendant No. 2, the then Branch Manage of the defendant No. 1 - Bank also admitted that loan was sanctioned in favour of one Shri K.C. Sharma for the purchase of Truck HIH-2046. The route permit was in favour of Kishan Chand Sharma son of Daya Ram Sharam. The entire loan amount stood repaid by the loanee and a "No due certificate" was issued by him in favour of Shri Kishan Chand Sharma on the basis of the name entered in the route permit under a bona fid belief that the truck was owned by Kishan Chand Sharma. He denied having connived with defendants No. 3 to 7. 9. Defendants No. 3 to 7 while resisting the suit, pleaded that the loan was applied for by and sanctioned in favour of their predecessor-in-interest Shri Kishan Chand Sharma. The truck was purchased by him and registered in his name. It was further pleaded that the plaintiff alter the death of Shri Kishan Chand Sharma, in order to grab the truck connived with Shri S.C. Kapoor, the then Branch Manager of the bank and got the original loan documents replaced. The entire loan amount was repaid by Shri Kishan Chand Sharma and the truck after his death was rightly transferred and registered in their favour after due enquiry by the Registering Authority. On the pleadings of the parties, following issues were framed on 13.7.1996:- 1. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD (1 AND 2). 2. Whether the suit is within time? OPP 3. Whether the plaintiff is estopped from filing the present suit on account of his own acts, conduct and acquiescence? OPD (1 & 2) 4. Whether the plaintiff has no cause of action ? OPD 5. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD (1 AND 2). 2. Whether the suit is within time? OPP 3. Whether the plaintiff is estopped from filing the present suit on account of his own acts, conduct and acquiescence? OPD (1 & 2) 4. Whether the plaintiff has no cause of action ? OPD 5. Whether the truck was purchased after obtaining loan from defendant No. 1, by the plaintiff? OP parties. 6. Whether the plaintiff is entitled to the delivery of truck No. HIH 2046 as claimed? OPP 7. Whether the plaintiff is entitled to compensation as claimed? If so, from whom and to what extent? OPP. 8. In the alternative, whether the plaintiff is entitled to the price of the trucks? OPP 9. Whether the plaintiff is entitled to the mesne profits, if so, at what rate? OPP 10. Whether the plaintiff has paid the loan amount due to defendant No. 1 ? OPP 11. Whether the plaintiff has no legal and enforceable claim against defendants No. l and 2? OPD (l & 2). 12. Relief. I have heard the learned counsel for the parties and have also gone through the record of the case. May findings on the above issues are as under:- Issues No. 1 and 11. 10. Defendants No.l and 2 have been impleaded in the present case by the plaintiff on the averments that defendant No.2, the then Branch Manager of defendant No.l at Mandi, had connived with defendants No. 3 to 7 in issuing the "No due certificate" in favour of Shri Kishan Chand Sharma in order to deprive the plaintiff of the truck. 11. No evidence is forthcoming on behalf of the plaintiff to show connivance between tne defendant No.2 and defendants No. 3 to 7. so much so that even the plaintiff, while appearing as PW 1 is silent on this aspect of the case and has not stated even a single word about defendant No.2 having connived with the defendants No. 3 to 7. 12. Ex.DW 3/A is the copy of the "No due certificate" issued by defendant No.2. Assuring that such certificate was wrongly issued in the name of Shri Kishan Chand Sharma, in the absence of evidence it cannot be said that was connivance between defendant No.2 and defendant No.3 to 7. Therefore, defendant No.2 cannot be held liable. 12. Ex.DW 3/A is the copy of the "No due certificate" issued by defendant No.2. Assuring that such certificate was wrongly issued in the name of Shri Kishan Chand Sharma, in the absence of evidence it cannot be said that was connivance between defendant No.2 and defendant No.3 to 7. Therefore, defendant No.2 cannot be held liable. Similarly, no vicarious liability can be fastened on defendant No. 1. The plaintiff does not have any enforceable and legal cause of action against defendants No.l and 2. The suit such is for mis-joinder of defendants No. 1 and 2. The two issues are decided in favour of defendants No.l and 2. Issues No.2 13. According to the plaintiff, the defendants No. 3 to 7 took forcible possession of the truck on 13.7.1991. The present suit has been filed on 30.11.1992. The present suit is for recovery of moveable property, namely, the truck and for recovery of compensation and mesne profits. The same having been filed within three years from the accrual of cause of action is within time. The issues is decided in favour of the plaintiff. Issue No.3 14. This issues was not pressed by the learned counsel for defendant No. 1 and 2 during the course of hearing. The same is as such decided against defendants No. 1 and 2. Issues No. 5 and 10. 15. Both these issues being inter-connected and co-related are being taken up and discussed together. 16. It is the admitted case of the defendant No.l, the Bank, which granted the loan, that the loan was applied for by and that the same was sanctioned and disbursed to the plaintiff under the name of Shri K.C.Sharma. Evidence coming on record also shows that the truck was purchased from Messrs Metro Motors, Amfcala Cantt in the name of Shri K.C.Sharma. 17. Ex. D2/31 is the photostat copy of the application from whereby loan was applied for. The photograph of the plaintiff is affixed thereon. This application is also signed by the plaintiff as K.C.Sharma. 18. PW 3 Shri S.C.Kapoor, who was the Branch Manager of the bank at the time when the loan was applied for and sanctioned, has categorically stated that the loan was applied for by the plaintiff and that all the necessary loan documents were executed by the plaintiff. This application is also signed by the plaintiff as K.C.Sharma. 18. PW 3 Shri S.C.Kapoor, who was the Branch Manager of the bank at the time when the loan was applied for and sanctioned, has categorically stated that the loan was applied for by the plaintiff and that all the necessary loan documents were executed by the plaintiff. He has further gone to state that the plaintiff and his brother Kishan Chand Sharma were known to him. 19. This witness has not been cross-examined on the question that the loan was applied for by and sanctioned in favour of Kishan Chand Sharma or that the signatures on the application form Ex.D 2/31 are that of Kishan Chand Shanna and not of the plaintiff. 20. Though defendants No.3 to 7 have averred in their written statement that after the death of Kishan .Chand Sharma, the plaintiff in connivance with PW 3 had replaced the original loan documents, no evidence in this regard has been adduced by them. Defendant No.3, while appearing as her own witness as D3W1 has not stated anything in this regard. 21. Admittedly, there has been previous litigation between the parties with regard to such truck before the learned Senior Sub Judge, Mandi. The defendants to No. 3 to 7 had filed a suit for permanent injunction against the plaintiff claiming themselves to be the owner of the truck in question. It was averred that the truck was purchased by Kishan Chand Sharma by taking loan from the bank. Ex.P. 18 is the copy of plaint of such suit. Admittedly, this suit was dismissed in default on 24.8.1992 under Order 9 rule 8, Code of Civil Procedure. 22. In the said suit, an attempt was made by the defendants 3 to 7 to amend their suit by raising the plea that the truck was purchased benami in the name of the plaintiff by the deceased Kishan Chand Sharma. Such amendment was not allowed simply on the ground that section 4 of the Benami Transactions (Prohibition) Act, 1988, prohibits the challenge to benami transactions. 23. It appears that having failed in their attempt to get their pleadings amended, the defendants 3 to 7 allowed the suit to be dismissed in default The fact remains that the defendants 3 to 7 have admitted that the truck was purchased in the name of the plaintiff. 24. Ex. 23. It appears that having failed in their attempt to get their pleadings amended, the defendants 3 to 7 allowed the suit to be dismissed in default The fact remains that the defendants 3 to 7 have admitted that the truck was purchased in the name of the plaintiff. 24. Ex. P-26 is the copy of entry of the register maintained in the office of Registering Authority. A perusal of the same also shows that the truck in question was registered in the name of the plaintiff as "Karam Chand Sharma son of Daya Ram". However, while issuing the requisite registration certificate, copy Ex.P-25, the name of the registered owner has been mentioned as "K.C.Sharma son of Daya Ram". A combined reading of Ex.P.25 and P.26 would show that "K.C.Sharma" mentioned in Ex. P.25 stand for "Karam Chand Sharma", that is, the plaintiff. 25. Ex. P. 13 and P. 14 are the copies of notices issued by the Assistant Excise and Taxation Commissioner, Hamirpur, to the plaintiff in respect of the truck in question. In these notices also plaintiff has been mentioned as owner of the truck in question. 26. Nothing has come on record by the defendants No.3 to 7 in rebuttal to the evidence led by the plaintiff. 27. From the evidence coining on record coupled with the admissions made by defendant No. 1 it is held that the truck in question was purchased by the plaintiff by raising loan from defendant No. 1 and that entire loan stands repaid by the plaintiff. The two issues are as such decided in favour of die plaintiff. Issue No.4 28. In view of my findings on issues No .5 and 10 above, the plaintiff has the cause of action. The issue is accordingly decided against the defendants. Issue No.6. 29. In view of my findings on issue No.S above that the truck was purchased by the plaintiff after raising loan from defendant No.l and in view of the fact that such truck is in possession of defendants No.3 to 7, the plaintiff is held entitled to the restoration of the truck HIH-2046. The issue is decided in favour of the plaintiff. Issue No.7. 30. The issue is decided in favour of the plaintiff. Issue No.7. 30. In the absence of any evidence as to the present condition of the truck and I the extent of amount required for restoring the truck to its original condition as on the I date it was sized by defendants 3 to 7, the plaintiff is held not entitled to any [ compensation. The issue is, therefore, decided against the plaintiff. Issue Nn.8. 31. The present issue has become redundant since the plaintiff has been entitled to the truck. Issue No 9. 32. The plaintiff has claimed mesne profits at the rate of Rs. 10,000/- per month with effect from 13.9.1991. "Mesne profits* have been described and defined under section 2(32), Code of Civil Procedure, as under- "mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, hut shall not include profits due to improvements made by the person in wrongful possession. Order 20, rule 12, Code of Civil Procedure, deals with the decree for possession and mesne profits. A combined reading of the two provisions, that is, section , 2(12) and Order 20 rule 12, Code of Civil Procedure, shows thai mesne profits I can- be claimed only in respect of the use and occupation of immovable property I and not in the case of a moveable property. Mesne profits have been defined in Whartons Law Lexicon, 14th Edition, as under "Mesne profits are the rents and profits which a trespasser has, or might have, received or made during his occupation of the premises, and which, therefore, he much pay over to the true owner as compensation for the tort which he has committed." In Kangabam Bira Singh v. Manipur Driver Union Co-operative Association Ltd. and others, AIR 1957 Manipur 9, a suit was inter-alia filed for recovery of mesne profits in respect of a lorry. Relying on the definition of Mesne profits as given in Whartons Law Lexicon, it was held:- "In S.2(12), Civil P.C. mesne profi." appear to have been given the same meaning, but it has been provided that this word shall not include profits due to improvement made by the person in wrongful possession. Relying on the definition of Mesne profits as given in Whartons Law Lexicon, it was held:- "In S.2(12), Civil P.C. mesne profi." appear to have been given the same meaning, but it has been provided that this word shall not include profits due to improvement made by the person in wrongful possession. These definitions make it clear that the mesne profits can be claimed regarding immovable property and not with regard to a motor lorry. As a motor lorry cannot be deemed to be immovable property, and as it has been proved in this case the defendants 1 and 2 became the full owners of this lorry after the execution of the sale deed Ex.A-1 and they remained in possession and the relevant documents were handed over to them and the plaintiff had no i n terest left in the lorry, he could not be allowed any decree for recovery of mesne profits or any profits in the present case." The Supreme Court in Lucy Kochuvareed v. P. Mariappa Gounder and others, AIR 1979 SC1214, has also held: "mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and the Court may mould it according to the justice of the case. Even so, one broad basic principle governing the liability for mesne profits is discernible from section 2( 12) of the Code of Civil Procedure which defines mesne profits to mean those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. From a plain reading of this definition, it is clear that wrongful possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendantss liability therefore. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits.... Following the above principle, it is held that the plaintiff is not entitled to any mesne profits since the property involved in the present case is moveable. The issue is decided against the plaintiff. Relief 33. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits.... Following the above principle, it is held that the plaintiff is not entitled to any mesne profits since the property involved in the present case is moveable. The issue is decided against the plaintiff. Relief 33. As a result of the above findings, the suit of the plaintiff partly succeeds and a decree is passed in his favour and against the defendants No.3 to 7 directing the latter to handover and deliver the truck HIH 2046 to the former forthwith. The suit of the plaintiff as against defendants. No.l and 2 shall stand dismissed as a whole. Similarly, the suit for recovery of compensation and mesne profits against defendants No.3 to 7 also shall stand dismissed. The plaintiff shall be entitled to proportionate costs of the suit.