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2003 DIGILAW 1331 (PNJ)

Vijay Kumar v. Tarlok Chand

2003-09-23

V.M.JAIN

body2003
Judgment V.M.Jain, J. 1. This judgment shall dispose of Regular Second Appeal Nos. 2487 and 2488 of 1991, as common questions of law and fact are involved in both these appeals. Even otherwise, it has been submitted before me by the learned counsel appearing for the parties that the result of Regular Second Appeal No. 2487 of 1991 shall determine the fate of the other appeal bearing Regular Second Appeal No. 2488 of 1991. Thus, for the purpose of deciding both these appeals, the facts of Regular Second Appeal No. 2487 of 1991 may be noticed. 2. Regular Second Appeal No. 2487 of 1991 has been filed by Vijay Kumar Plaintiff, challenging the judgment and decree dated 18.10.1991, passed by the Additional District Judge, Hoshiarpur, whereby the appeal filed by Tarlok Chand defendant was accepted, the judgment and decree dated 7.10.1989 passed by the trial Court, were set aside and the suit filed by Vijay Kumar plaintiff for the recovery of Rs. 35,234.65 was dismissed. 3. Vijay Kumar plaintiff had filed a suit for the recovery of Rs. 35,234.65 against Tarlok Chand defendant on 30.3.1987 alleging therein that he (Vijay Kumar) on 30.3.1987 alleging therein that he (Vijay Kumar) was the owner of Truck No. PJD-507, which was attached with the Truck Union at Balachaur. It was alleged that Vijay Kumar plaintiff, Tarlok Chand defendant along with Abhey Kumar son of Nek Chand and Parphul Kumar son of Tarlok Chand were partners in the firm M/s Nek Chand Tarlok Chand Jain and were related to each other and were dealing in the cloth business at Balachaur. It was alleged that there was dispute in respect of movable and immovable properties between the parties and the said firm was dissolved with effect from 8.1.1983 and Vijay Kumar plaintiff and his brother Abhey Kumar were allowed to keep the name of the firm upto 31.3.1984. It was alleged that on 8.11.1983, the aforesaid truck No. PJD-507 was handed over to Tarlok Chand defendant, having its total value at Rs. 1,50,000/-, by Vijay Kumar plaintiff with the stipulation that Tarlok Chand defendant shall pay a sum of Rs. 1,05,761.95 to the New Bank of India Balachaur in respect of the Bank loan for the said truck which stood hypothecated with the aforesaid Bank and Tarlok Chand defendant had agreed to pay Rs. 1,50,000/-, by Vijay Kumar plaintiff with the stipulation that Tarlok Chand defendant shall pay a sum of Rs. 1,05,761.95 to the New Bank of India Balachaur in respect of the Bank loan for the said truck which stood hypothecated with the aforesaid Bank and Tarlok Chand defendant had agreed to pay Rs. 44,238.05 on 30.3.1984 to Vijay Kumar plaintiff and in case of his failure to pay the said amount, Tarlok Chand defendant had agreed to pay the interest @ 18% per month with effect from 31.3.1984, to Vijay Kumar plaintiff and in case of his failure to pay the said amount, Tarlok Chand defendant had agreed to pay the said interest @ 1% per month with effect from 31.3.1984, the day on which Tarlok Chand defendant as partner of M/s Nek Chand Jain was to pay the outstanding amount of Tarlok Chand and Parphul Kumar and the others relatives etc. of Tarlok Chand defendant. It was alleged that Tarlok Chand defendant had deposited a sum of Rs. 6000/- to the Bank loan account of the truck of the plaintiff on 9.11.1983 through his son Varindcr Kumar and that the defendant himself and through his son Parphul Kumar had received various amounts on various dates from the Truck Union between January 1984 and November, 1984. It was further alleged that the dispute in respect of the immovable properties and aforesaid truck No. PJD-507 and other disputes between the parties were put before Sarvshri Mahavir Parsad, Pawan Kumar and Tarsem Lal Jain, the mutually agreed arbitrators, who gave their award on 20.3.1984, according to which Tarlok Chand defendant was to pay the loan amount to the New Bank of India, Balachaur. It was alleged that a memorandum of family settlement arbitration award was also executed to this effect in which reference to truck No. PJD-507 was also made. It was alleged that on 21.3.1984 after the award family settlement and the execution of the memorandum of family settlement/arbitration award dated 20.3.1984 Tarlok Chand defendant through his son Parphul Kumar deposited Rs. It was alleged that a memorandum of family settlement arbitration award was also executed to this effect in which reference to truck No. PJD-507 was also made. It was alleged that on 21.3.1984 after the award family settlement and the execution of the memorandum of family settlement/arbitration award dated 20.3.1984 Tarlok Chand defendant through his son Parphul Kumar deposited Rs. 18,000/- towards instalments of the truck loan account with the New Bank of India Balachaur and besides that Tarlok Chand defendant also pledged FDR No. 138/181 dated 17.8.1981 in the name of Smt. Komal Jain wife of Parphul Kumar son of Tarlok Chand defendant with the assurance to adjust the amount of the FDR and interest accruing thereon, in the truck loan account in case of non-payment of the instalments. It was alleged that Tarlok Chand defendant did not regularly deposit the instalments of the Bank loan, as per the notice dated 11.8.1984 issued by the Bank in the name of the plaintiff and the Bank had adjusted a sum of Rs. 10,760/- of the aforesaid FDR including interest due thereon in the name of Smt. Komal Jain after issuing notice to her and to the plaintiff. It was alleged that after receipt of the aforesaid notice from the Bank on 2.12.1984, the plaintiff took in his possession truck No. PJD-507 and on 3.12.1984 he sold the same to Sarvshri Ram Sarup and Om Parkash sons of Sant Ram for a sum of Rs. 1,12,000/- under the compelling circumstances created by Tarlok Chand defendant himself by not depositing the Bank instalments. It was alleged that out of the sale proceeds of the truck, the plaintiff deposited a sum of Rs. 91,750/- with the Bank and received Rs. 30,250/- in cash. It was alleged that the plaintiff had purchased drafts in the names and amount as mentioned in para No. 2 of the plaint from the New Bank of India Balachaur on 30.3.1984 and handed over the same to the defendant and other concerned persons related to the defendant and similarly the defendant had purchased a bank draft dated 30.3.1984 in the name of the plaintiff for Rs. 44,238.05 in respect of the unpaid balance sale consideration of the said truck No. PJD-507 from the same Bank but he did not hand over the same to the plaintiff and subsequently, the defendant got the said Bank draft/pay order for Rs. 44,238.05 in respect of the unpaid balance sale consideration of the said truck No. PJD-507 from the same Bank but he did not hand over the same to the plaintiff and subsequently, the defendant got the said Bank draft/pay order for Rs. 44,238.05 (purchased by him in the name of the plaintiff), cancelled on 3.4.1984 and in this manner, the defendant did not pay the agreed balance sale consideration of Rs. 44,238.05 to the plaintiff, to which amount the plaintiff was legally entitled to recover from the defendant and the defendant was liable to pay the same to the plaintiff. It was alleged that the plaintiff was entitled to recover the unpaid sale consideration in respect of the aforesaid truck No. PJD-507 alongwith interest @ 1% per month from the date the defendant had agreed to pay the said amount to him on 8.11.1983. It was alleged that after adjustments, the plaintiff is entitled to recover a sum of Rs. 35,234.65 including interest etc. from the defendant and that the suit for the recovery of the aforesaid amount be decreed. 4. The said suit filed by Vijay Kumar plaintiff was contested by Tarlok Chand defendant by filing the written statement, taking up various preliminary objections including the stand that the alleged family settlement dated 20.3.1984 was a bogus and fictitious document and inadmissible in evidence. It was alleged that the alleged award dated 20.3.1984 was void and fictitious document and was never made the Rule of the Court and was inadmissible in evidence. On merits, it was admitted that the plaintiff, the defendant alongwith Abhey Kumar and Parphul Kumar were the partners of the firm M/s Nek Chand Tarlok Chand Jain and the same was dissolved on 8.11.1983. It was alleged that the plaintiff and his brother Abhey Kumar were never allowed to keep the name of the firm for any period, whatsoever, after 8.11.1983. It was also denied that the aforesaid truck was ever handed over to the defendant or that its value was assessed at Rs. 1,50,000/-. It was further alleged that the defendant had never agreed to pay a sum of Rs. 1,05,764.95 or any other amount to the New Bank of India Balachaur and the defendant had also never agreed to pay Rs. 44,238.05 to the plaintiff on account of truck No. PJD-507 nor did he agree to pay interest to the plaintiff. 1,50,000/-. It was further alleged that the defendant had never agreed to pay a sum of Rs. 1,05,764.95 or any other amount to the New Bank of India Balachaur and the defendant had also never agreed to pay Rs. 44,238.05 to the plaintiff on account of truck No. PJD-507 nor did he agree to pay interest to the plaintiff. It was alleged that in fact the plaintiff had agreed to hand over cloth of the value of Rs. 44,238.05 to the defendant but later on he backed out of his commitment, whereupon the defendant had cancelled the pay order which he had drawn on the New Bank of India, Balachaur for handing over the same to the plaintiff in lieu of the price of the cloth. It was alleged that the plaintiff had undertaken to pay the amount of various persons. He owed the said amounts towards them on account of transactions in respect of the cloth. It was alleged that the defendant had not deposited any amount in the truck loan account of the plaintiff through Varinder Kumar nor did he ever received any amount from the Truck Union personally or through anyone else. It was further alleged that if it was proved that the defendant had ever received any amount from the truck Union, that must have been on the instructions of the plaintiff and on his behalf. It was further alleged that no dispute was ever referred to any arbitrator nor any family settlement was ever arrived at or executed between the parties. It was alleged that the alleged arbitration award was a bogus and fictitious document besides being void and inadmissible in evidence. It was alleged that the same was never made the Rule of the Court and was never acted upon and would have no affect on the rights of the defendant. It was alleged that the plaintiff should first file the alleged award before a competent Court and get a ruling, before it cold be enforced by a Civil Court. It was alleged that in view of this the question of there being any reference of truck No. PJD-507 in the memorandum of family settlement/arbitration award did not arise. It was alleged that the plaintiff should first file the alleged award before a competent Court and get a ruling, before it cold be enforced by a Civil Court. It was alleged that in view of this the question of there being any reference of truck No. PJD-507 in the memorandum of family settlement/arbitration award did not arise. It was alleged that the defendant did not deposit any amount by way of instalments of the truck loan with the New Bank of India personally or through any body else nor did he pledge FDR of any one with the said Bank. It was alleged that in fact the defendant was not responsible to deposit any instalment in the Bank nor the Bank had any right to adjust the amount of any FDR against the loan account of the truck. It was alleged that in fact the truck had always been in possession of the plaintiff. It was denied that the plaintiff had taken the possession of the truck after receipt of notice from the Bank. It was alleged that the defendant was not aware if the plaintiff had sold the said truck and if so to whom and for how much, nor the defendant was aware of the fact as to what the plaintiff did with the alleged sale proceeds. It was alleged that the plaintiff had never handed over any draft payable to anyone to the defendant except a draft of Rs. 14,596,10 which the plaintiff owed to the defendant and his son Parphul Kumar. It was alleged that the pay order which was got prepared by the defendant and later on got cancelled, had nothing to do with truck No. PJD-507. It was denied that the defendant had agreed to pay any amount to the plaintiff towards the price of the truck or that the plaintiff was entitled to recover any amount from the defendant on that account. Other allegations contained in the plaint were also denied and it was prayed that the suit be dismissed. 5. The plaintiff filed replication controverting the allegations contained in the written statement and reiterating the stand taken by him in the plaint. It was denied that the plaintiff had agreed to hand over cloth of the value of Rs. Other allegations contained in the plaint were also denied and it was prayed that the suit be dismissed. 5. The plaintiff filed replication controverting the allegations contained in the written statement and reiterating the stand taken by him in the plaint. It was denied that the plaintiff had agreed to hand over cloth of the value of Rs. 44,236,05 to the defendant or that the plaintiff backed out of any such commitment or that the defendant got the pay order cancelled, which was got prepared towards the price of cloth. It was alleged that in fact that plaintiff was not running any cloth business in his name at that time nor he had ever agreed to hand over any cloth to the defendant as alleged. 6. From the pleading of the parties, the learned trial Court framed the following issues in this case;- 1. Whether truck No. PJD-507 was handed over to the defendant with its value of Rs. 1,50,000/- by the plaintiff as alleged? OPD. 2. Whether the amount of Rs. 1,05,761.05 and Rs. 44.238.05 were agreed to be paid by the defendant No. N.B.I. Balachaur and the plaintiff as alleged? OPP 3. Whether the plaintiff had agreed to hand over the cloth worth Rs. 44,238.05 to the defendant as alleged? OPD. 4. Whether the dispute was referred to Arbitrator as alleged in para No. 3 of the plaint, if so its effect? OPP 5. Whether defendant deposited the amount of Rs. 18,000/- with New Bank of India as alleged? OPP 6. Whether the truck was taken into possession by the plaintiff as alleged in para No. 5 of the pliant? OPD 7. Whether the suit is not within time? OPD 8. Whether the plaintiff is estopped from filing this suit by his act, conduct and admissions? OPD 9. Whether the plaintiff has no locus standi to file this suit? OPD 10. Whether the alleged family settlement dated 20.3.1984 is a bogus and fictitious document? OPD 11. Whether the alleged award dated 20.3.1984 is void and fictitious document as alleged? OPD 12. Relief. After hearing both sides and after perusing the record, the learned trial Court decreed the suit of the plaintiff for the recovery of Rs. OPD 10. Whether the alleged family settlement dated 20.3.1984 is a bogus and fictitious document? OPD 11. Whether the alleged award dated 20.3.1984 is void and fictitious document as alleged? OPD 12. Relief. After hearing both sides and after perusing the record, the learned trial Court decreed the suit of the plaintiff for the recovery of Rs. 35,234.65 along with future interest @ 6% per annum on the said amount from the date of the institution of the suit till realisation of the decretal amount, vide judgment and decree dated 7.10.1989. Aggrieved against the same, Tarlok Chand defendant filed an appeal. After hearing both sides and perusing the record, the learned Additional District Judge accepted the appeal, set aside the judgment and decree of the Trial Court and dismissed the suit of the plaintiff, vide judgment and decree dated 18.10.1991. Aggrieved against the same, Vijay Kumar plaintiff filed the present appeal in this Court, challenging the aforesaid judgment and decree passed by the learned Additional District Judge. 7. I have heard the learned counsel for the parties and have gone through the record carefully. 8. After hearing the learned counsel for the parties and perusing the record, in my opinion, the following substantial questions of law arise for determination in this appeal:- i) Whether the memorandum of family settlement/arbitration award dated 20.3.1984 required registration and was admissible in evidence without getting it registered, considering that it had been acted upon between the parties, in view of the previous decision in respect of this document between the parties in R.S.A. No. 516 of 1990 decided on 3.6.1992? ii) Whether on the oral and documentary evidence available on the record could it be said that Tarlok Chand defendant was liable to pay anything to Vijay Kumar plaintiff in respect of the truck in question as claimed by the plaintiff and whether the plaintiff was entitled to the decree for Rs. 35,234.65 ? iii) Whether the findings recorded by the learned Additional District Judge regarding liability of the defendant are not based on the evidence led by the parties and as such required interference and whether it could be said that there was any misreading of evidence by the learned Additional District Judge ? 9. 35,234.65 ? iii) Whether the findings recorded by the learned Additional District Judge regarding liability of the defendant are not based on the evidence led by the parties and as such required interference and whether it could be said that there was any misreading of evidence by the learned Additional District Judge ? 9. The learned counsel appearing for the plaintiff-appellant submitted before me that the memorandum of partition/family settlement/arbitration award dated 20.3.1984 was admissible in evidence keeping in view the fact that the said settlement was got arrived at by common friends and relatives of the parties and the same was acted upon and in view of the fact that in another litigation between the parties, the said document was held to be admissible in evidence without getting the same registered, as would be clear from the decision of this Court in the case of Tarlok Chand v. Vijay Kumar, (1992-2)102 P.L.R. Page 357. It was submitted that the suit filed by the plaintiff should have been decreed in view of the evidence available on the record. On the other hand, the learned counsel appearing for the defendant-respondent submitted before me that even if the aforesaid document is held to be admissible in evidence without getting it made a Rule of the Court and without getting it registered, still the suit filed by the plaintiff could not be decreed. It was submitted that the said documents was silent with regard to the case set up by the plaintiff in the present suit; in respect of the truck in question i.e. truck No. PJD-507. It was submitted that even the document vide which a reference was made to the three arbitrators, namely, Mahavir Prasad, Pawan Kumar and Tarsem Lal Jain, was silent with regard to the truck in question and as such the plaintiff-appellant can not take any benefit of the alleged memorandum of family settlement/arbitration award. It was further submitted that even the sale of the truck for Rs. 1,50,000/- was not proved on the record and as such the suit filed by the plaintiff was liable to be dismissed, which even otherwise was barred by time. 10. As referred to above, the plaintiff has based his entire claim in the present suit on the memorandum of family settlement/arbitration award dated 20.3.1984 while filing the present suit for the recovery of Rs. 35,234.65 against the defendant. 10. As referred to above, the plaintiff has based his entire claim in the present suit on the memorandum of family settlement/arbitration award dated 20.3.1984 while filing the present suit for the recovery of Rs. 35,234.65 against the defendant. The writing was executed by Mahavir Prasad, Pawan Kumar and Tarsem Lal Jain, as arbitrators, as the parties and referred the matter for their arbitration. A perusal of the memorandum of family settlement/arbitration award dated 20.3.1984 would show that the dispute between the parties was amicably settled with the intervention of common friends and relatives, namely, Mahavir Prasad, Pawan Kumar and Tarsem Lal Jain, in respect of the various properties etc. Item No. 4 of the said memorandum of family settlement/arbitration award pertains to the truck in question bearing No. PJD-507, in the name of Vijay Kumar plaintiff and that the said truck had been given to Tarlok Chand defendant and Vijay Kumar plaintiff shall give the necessary papers of the truck besides Power of Attorney to Tarlok Chand defendant and the case of respect of the said truck, which was pending in the Courts at Ludhiana, shall be prosecuted/defended (pairvee) by Tarlok Chand defendant and on the decision of the said case, whatever financial burden would be there, the same shall be shared equally by both the sides. It was further decided that it shall be the liability of Tarlok Chand defendant to repay the Bank instalments in respect of the said truck. Even in the document vide which the matter was referred to the arbitration of the aforesaid persons, namely, Mahavir Prasad, Pawan Kumar and Tarsem Lal Jain, details of various disputes between the parties, which were required to be settled, had been given and in respect of the truck No. PJD-507, it was only mentioned witn regard to the expenses for the litigation in respect of the said truck. 11. From a perusal of the aforesaid two documents, in my opinion, it would be clear that the matter regarding truck No. PJD-50 was referred for the decision by aforesaid Mahavir Prasad. Pawan Kumar and Tarsem Lal Jain and they had given their decision, which was reduced into writing in the form of memorandum of family partition/arbitration award dated 20.3.1984. 11. From a perusal of the aforesaid two documents, in my opinion, it would be clear that the matter regarding truck No. PJD-50 was referred for the decision by aforesaid Mahavir Prasad. Pawan Kumar and Tarsem Lal Jain and they had given their decision, which was reduced into writing in the form of memorandum of family partition/arbitration award dated 20.3.1984. This very document was under consideration before this Court in R.S.A. No. 516 of 1990 - Tarlok Chand v. Vijay Kumar and vide judgment dated 3.6.1992 reported as (1992-2)102 P.L.R. 357 (supra), this Court had held the aforesaid memorandum of partition/award to be admissible in evidence, considering that common friends and relative of the parties had effected the partition between the parties and thereafter the same was reduced into writing in the form of a memorandum of past events and it was also proved on the record that the said memorandum of partition/award had been acted upon. It was further held that such a document did not require registration. In view of the aforesaid finding arrived at by this Court, in respect of the aforesaid document in another litigation between the parties, in my opinion, it can safely be held that the aforesaid memorandum of settlement award dated 20.3.1984 was admissible in evidence. The substantial question of law at Serial No. (i) framed above, is thus decided in favour of the plaintiff-appellant. 12. The next question that comes up for consideration is as to whether on the basis of the aforesaid memorandum of partition/award dated 20.3.1984 and/or any other evidence available on the record, could it be said that Vijay Kumar-plaintiff was entitled for the recovery of Rs. 35,234.65, as claimed by him in the present suit. In my opinion, on the basis of the evidence available on the record, no case for decreeing the suit of the plaintiff-appellant for the recovering of the aforesaid amount is made out and the learned Additional District Judge had rightly accepted the appeal, set aside the judgment and decree of the Trial Court and had rightly dismissed the suit of the plaintiff for the recovery of the aforesaid amount of Rs. 35,234.65. As referred to above, the plaintiff had based his entire suit on the basis of the aforesaid memorandum of partition/award dated 20.3.1984. 35,234.65. As referred to above, the plaintiff had based his entire suit on the basis of the aforesaid memorandum of partition/award dated 20.3.1984. A perusal of Clause 4 of the said document would clearly show that the truck in question, which was in the name of Vijay Kumar, was given to Tarlok Chand and that Vijay Kumar was required to give necessary papers/Power of Attorney to Tarlok Chand defendant and the Tarlok Chand was liable to repay the Bank instalments (in respect of the said truck). Besides that, the case in respect of the said truck, which was pending in the Court at Ludhiana, was to be prosecuted/defended by Tarlok Chand and on the final adjudication of the said case, the financial burden would be borne by both the sides in equal shares. Except this clause pertaining to truck No. PJD-507 the entire memorandum of partition/settlement/award is absolutely silent in respect of the aforesaid truck. 13. As referred to above, in the suit it was alleged by the plaintiff that there was dispute in respect of the moveable and immovable properties between the parties and the firm was dissolved with effect from 8.11.1983 and on 8.11.1983 the said truck was handed over to the defendants with its total value of Rs. 1,50,000/- with the stipulation that defendant will pay a sum of Rs. 1,05,761.95 to the New Bank of India in respect of the Bank loan for the said truck which stood hypothecated with the said Bank and the defendant had also agreed to pay Rs. 44,238.05 on 30.3.1984 to the plaintiff. It was further alleged that the, dispute in respect of movable properties, truck No. PJD-507 and other disputes were put before aforesaid Mahavir Prasad, Pawan Kumar and Tarsem Lal Jain, the mutually agreed, arbitrators, who gave their award on 20,3.1984 according to which the defendant was to pay the loan amount to the New Bank of India, As referred to above, in the memorandum of settlement/award dated 20.3.1984, it was only mentioned that the truck in question, which was in the name of Vijay Kumar, had been given to Tarlok Chand and that Vijay Kumar shall hand over the necessary documents of the truck and Power of Attorney to Tarlok Chand and Tarlok Chand would be liable to pay the loan instalments to the Bank in respect of the said truck. Besides, both the parties shall share expenses of the case pertaining to the said truck pending in the Courts at Ludhiana. In the said memorandum, there was no reference to any payment which Tarlok Chand defendant was required to pay to Vijay Kumar plaintiff in respect of the aforesaid truck. Even the dissolution deed dated 20.3.1984, in respect of firm M/s Nek Chand Tarlok Chand Jain with effect from 9.11.1983, is silent in respect of the truck in question. It is so because the said truck was not the ownership of the partnership firm but was owned by Vijay Kumar plaintiff in his name. There is no other document available on the record to show that on 8.11.1983, the said truck was handed over to the defendant with its total value of Rs. 1,50,000/- by the plaintiff along with the stipulation that the defendant shall pay Rs. 1,05,763.95 to the New Bank of India in respect of the Bank loan of the said truck which stood hypothecated with the said Bank and that the defendant had agreed to pay Rs. 44,238.05 on 30.3.1984 to the plaintiff, as alleged by the plaintiff in para 2 of the plaint. On the other hand, as referred to above, in the memorandum of settlement/award dated 20.3.1984, it was clearly mentioned by the three arbitrators that the truck in question, which was in the name of Vijay Kumar plaintiff, had been given to Tarlok Chand defendant and the entire liability to repay the loan amount to the Bank in respect of the said truck would be that of Tarlok Chand defendant. However, as referred to above, there was no reference in the said memorandum that Tarlok Chand defendant was also required to pay any amount to Vijay Kumar, in respect of the said truck. In this view of the matter, it can safely be held that besides the aforesaid writing in the form of memorandum dated 20.3.1984, there is no other documentary evidence available on the record to show that the defendant was required to pay anything to the plaintiff towards the truck in question. 14. Once it is found that there was no writing in support of the case of the plaintiff that the defendant was required to pay Rs. 14. Once it is found that there was no writing in support of the case of the plaintiff that the defendant was required to pay Rs. 44,238.05 to the plaintiff in respect of the truck in question, we are left with the oral evidence, considering that in the written statement the defendant had denied the allegations of the plaintiff in this regard. The learned Additional District Judge took into consideration the oral evidence led by the parties in this regard and came to the conclusion that the oral evidence led by the plaintiff could not be relied upon to reach a positive findings that the truck had actually changed hands and Tarlok Chand was liable to pay not only the outstanding loan to the Bank but also the balance sale consideration to Vijay Kumar. It was found by the learned Additional District Judge that the testimony of the plaintiff in this regard was quite inconsistent. It was found that initially he stated that the truck had been sold to Tarlok Chand after 8.11.1983 and again stated that the truck was sold to Tarlok Chand on 8.11.1983. It was found by the learned Additional District Judge that the oral evidence of the plaintiff was quite inconsistent and he had been blowing hot and cold in the same breath and as such it was difficult to accept his word of mouth that an oral agreement had been arrived at between the parties that the said truck was sold to Tarlok Chand on 8.11.1983 on his undertaking to pay a sum of Rs. 1,50,000/- to Vijay Kumar, especially when no documentary evidence, whatsoever, was forthcoming in that respect. It was found by the learned Additional District Judge that the parties belong to business community and were expected to put the transaction into black and white, especially when the partnership firm of the parties was dissolved and the assets and liabilities of the firm were divided and reflected in the account of the fact that certain payment had been received by the son of defendant from the truck union and some instalments were deposited by the sons of the defendant with the Bank after 8.11.1983. It was found that since the parties were closely related the defendant could not be made liable because some others had been receiving the amount from the union and had been depositing the amount in the Bank and that no document had been brought on the record to show that Tarlok Chand defendant had admitted to pay the outstanding liability. It was also found by the learned Additional District Judge that Vijay Kumar plaintiff had admitted that even after 8.11.1983 he continued to be shown in the registration certificate as the registered owner of the truck and also admitted that he had not given any affidavit or any other document for transfer of the said truck in the name of Tarlok Chand. It was found that the plaintiff in any case was required to furnish an affidavit to show that the truck had been sold by him to Tarlok Chand and had no objection for transferring it in his name in the registration records. Even the said affidavit had not been furnished By the plaintiff and in the absence of the same, it would not be possible to accept that the truck had actually changed hands in pursuance of some oral transaction between the parties. While accepting the appeal filed by the defendant, it was also found by the learned Additional District Judge that the cancellation of the pay order in the sum of Rs. 44,238.05 which was got prepared by Tarlok Chand in favour of Vijay Kumar could not be made the basis for holding that the defendant had agreed to pay the aforesaid amount of Rs. 44,238.05 to the plaintiff in respect of the transaction pertaining to the aforesaid truck. It was also found by the learned Additional District Judge, after considering the entire evidence, that no transaction had taken place in respect of the truck in question prior to the date when the arbitrators had given their award and memorandum of settlement/award was executed. It was found by the learned Additional District Judge that the Trial Court had erred in law in holding that truck No. PJD-507 was sold by the plaintiff to the defendant for a sum of Rs. 1,50,000/- on his undertaking to pay Rs. 1,05,761.05 to the Bank and the remaining amount of Rs. 33,238.03 to the plaintiff. 15. It was found by the learned Additional District Judge that the Trial Court had erred in law in holding that truck No. PJD-507 was sold by the plaintiff to the defendant for a sum of Rs. 1,50,000/- on his undertaking to pay Rs. 1,05,761.05 to the Bank and the remaining amount of Rs. 33,238.03 to the plaintiff. 15. After hearing the learned counsel for the parties and after perusing the entire evidence led by the parties, in my opinion, the findings recorded by the learned Additional District Judge, as referred to above, are based on the evidence led by the parties and there is no scope for interference by this Court in this regard in the present Regular Second Appeal. The learned counsel appearing for the plaintiff-appellant could not point out any material from the record to show that the findings recorded by the learned Additional District Judge, were not based on the oral and documentary evidence led by the parties, and/or call for interference by this Court in the present Regular Second Appeal. Once it is found that there is no convincing evidence available on the record to prove that the plaintiff had given the truck in question to the defendant on 8.11.1983 fixing its value at Rs. 1,50,000/- and/or that the defendant had agreed to pay Rs. 1,05,761.95 to the New Bank of the India in respect of the loan amount of the truck and had agreed to pay the balance of Rs. 44,238.95 to the plaintiff, in my opinion, the present suit for recovery filed by the plaintiff for a sum for Rs. 35,234.65 could not be decreed and in my opinion the same had rightly been dismissed by the learned Additional District Judge, especially when the memorandum dated 20.3.1984 is also silent with regard to the payment of any money by the defendant-plaintiff in respect of the said truck and in my opinion, no fault could be found with the same. 16. There is another aspect of the matter. 16. There is another aspect of the matter. As per Clause 4 of the aforesaid memorandum dated 20.3.1984 the truck in question owned by Vijay Kumar was given to Tarlok Chand defendant and Vijay Kumar was required to give the necessary papers of the said truck along with Power of Attorney to the defendant and the defendant was required to give the instalments of the Bank loan in respect of the said truck to the Bank. As referred to above, the plaintiff had not given the necessary papers and the Power of Attorney to the defendant in respect of the truck in question, as admitted by the plaintiff himself. Furthermore, it is the case of the plaintiff himself that he had sold the said truck to a third person and had cleared the instalments out of the sale proceeds in respect of the said truck, with the New Bank of India and had pocketed the balance amount. In this view of the matter, in my opinion, the plaintiff would have no claim against the defendant in respect of the truck in question, especially when the plaintiff had failed to show that the defendant was required to pay anything to the plaintiff in respect of the said truck. In my opinion, the learned Additional District Judge had rightly accepted the appeal and had rightly set aside the judgment of the trial Court and had rightly dismissed the suit of the plaintiff and no fault could be found with the same. I am further of the opinion that the substantial questions of law at Serial Nos. (ii) and (iii) are liable to be decided against the plaintiff-appellant. Orders accordingly. In view of the above, in my opinion, the present appeal, bearing Regular Second Appeal No. 2487 of 1991 filed by Vijay Kumar is liable to be dismissed. 17. I am further of the opinion that the substantial questions of law at Serial Nos. (ii) and (iii) are liable to be decided against the plaintiff-appellant. Orders accordingly. In view of the above, in my opinion, the present appeal, bearing Regular Second Appeal No. 2487 of 1991 filed by Vijay Kumar is liable to be dismissed. 17. Once it is found that the present appeal field by Vijay Kumar plaintiff bearing Regular Second Appeal No. 2487 of 1991 is liable to be dismissed, in my opinion, the other appeal, bearing Regular Second Appeal No. 2488 of 1991 fled by Vijay Kumar plaintiff against Smt. Komal Jain, defendant and the New Bank of India, is also liable to be dismissed, since it was agreed before me by the learned counsel for the parties that the result of Regular Second Appeal No. 2487 of 1991 shall determine the result of Regular Second Appeal No. 2488 of 1991.In view of the above, finding no merit in these appeals, both the appeals are hereby dismissed.