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Uttarakhand High Court · body

2003 DIGILAW 22 (UTT)

Dharampal v. United Traders

2003-03-07

K.D SHAHI, SURENDER KUMAR

body2003
JUDGMENT 1. This is an appeal against the order dated 1.11.2002 passed by the District Forum, Udham Singh Nagar dismissing the complaint and directing the complainant to pay a sum of Rs. 1000/- to respondents No. 1 & 2. The complainant Shri Dharampal purchased a Mahendra tractor in 1999 through M/s. United Traders from Mahendra & Mahendra Company, respondent No.2. The loan was granted by Punjab National Bank respondent No. 3. There were some defects in the engine. The complainant filed a complaint before the Forum for the change of the tractor and for issuance of the sale letter. 2. During the course of proceedings before the learned Forum, the complainant did not press his prayer for the change of the tractor by replacing the old tractor by a new tractor. He, however, pressed for the issuance of the sale letter. 3. The learned Forum passed the order that since a sum of Rs. 75000/- margin money was advanced by the respondent No.1, M/s. United Tractor, Rudrapur and it had not been paid by the complainant, therefore, the sale letter was rightly not given to the complainant. The complaint was dismissed and the complainant was shadled with a cost of Rs. 1000/-. Against this order, the complainant had filed this appeal. 4. Here too, the complainant wanted to raise the plea for the change of the tractor but we did not allow him to raise this plea because he has already left it before the learned Forum. It was not permissible for him to say that he or his counsel has not given any such statement before the learned Forum. 5. The question is only regarding the issuance of the sale letter. 6. In this regard, the case of the respondent No. 1 is that when the complainant came to book the tractor, he has got no margin money of Rs. 75000/- to pay, he was given this money by the respondent No. 1 through a cheque. The complainant encashed the cheque and deposited it for making payment to the respondent No.2. It was argued that this amount is a lien over the tractor and unless this amount was paid to the respondent No.1, there is no question of giving the sale letter. 7. The complainant encashed the cheque and deposited it for making payment to the respondent No.2. It was argued that this amount is a lien over the tractor and unless this amount was paid to the respondent No.1, there is no question of giving the sale letter. 7. The complainant alleged that he has taken a loan of this amount from his relation Shri Santokh Singh and given it to respondent and there is no such lien. 8. We have heard the counsel for the parties and gone through the records. The complainant purchased a tractor. The tractor has been delivered to him. The respondent No. 1 is only a dealer. The purchase was made from the respondent No. 2, Mahendra & Mahendra. Entire payment has been made to Mahendra & Mahendra as is clear from the receipt dated 12.4.99. The delivery has also been made to the complainant. Thus, what is clear that the whole price has been paid, the delivery of the tractor has been made to the purchaser and the sale becomes complete. The usual servicing of the tractor has also been made by the dealer. 9. Now the question is whether a sum of Rs. 75000/- loan was taken by the complainant or not is different matter. Loan is loan and it can be realised as a loan only. It does not create any lien of the seller over the property sold. The Forum has got limited jurisdiction, it has got no authority to decide whether a loan of Rs.75000/- was given or not and whether it should be refunded or not. That is of the jurisdiction of the civil court. For the Forum of Commission, it is sufficient that the full and final payment has been made for the purchase. The Article has been delivered to the purchaser and the sale be comes complete. When the sale becomes complete the claimant becomes entitled to the sale letter. 10. The learned counsel for the respondent referred some provisions of the Sale of Goods Act and argued that under Section 45, unpaid seller"has been defined as he is not paid the whole of the price. The respondent is not an unpaid seller. His giving of loan is a together different matter. Under the provisions of Section 45, the Sale of Goods. The respondent is not an unpaid seller. His giving of loan is a together different matter. Under the provisions of Section 45, the Sale of Goods. Act, the seller of the goods is deemed to be an unpaid seller when the whole of the price has not been paid. In this case, whole of the price has been paid. It is not said that the sum of Rs. 75000/- has not been paid at the time of purchase of the tractor. It has been paid but after taking a loan even if the case of the respondent is taken to be correct. Under Sections 46, the rights of the unpaid seller has been given. Even if the respondent is unpaid seller then also in his rights, he has got a lien on the goods for the price while he is in possession. Admittedly in this case, he now not in possession. He has got no right of re-" sale. This right has not been claimed here. If he has got lien under Section 47 of the Sale of Goods Act, he is entitled to retain the possession. He has already parted with possession. Therefore, any of the provisions of the Sale of Goods Act will not apply. 11. We are not entering into controversy whether the respondent No.1 had given a loan of Rs. 75000/- to the claimant or not and whether this amount has been refunded to the respondent No. 1 or not, this is altogether different matter unconnected with the right of the claime ant to get the sale letter. If the respondent has got any right to this amount, he can enforce it separately by a civil suit but since the full and final payment has been made to the company and delivery of the tractor have been made to the claimant, he is entitled to the sale letter. Non-issuance of the sale letter is definitely a deficiency in service. The tractor cannot run without the registration etc. and registration etc. cannot be made without the sale letter. The appeal is, therefore, fit to be I allowed, as prayed. ORDER 12. The appeal is hereby allowed. The judgment and order dated 1.11.2002 passed by the District Forum is hereby set aside. The respondents are directed to furnish the copy of the sale letter to the claimant immediately. and registration etc. cannot be made without the sale letter. The appeal is, therefore, fit to be I allowed, as prayed. ORDER 12. The appeal is hereby allowed. The judgment and order dated 1.11.2002 passed by the District Forum is hereby set aside. The respondents are directed to furnish the copy of the sale letter to the claimant immediately. In the circumstances of the case, the cost of this appeal shall be easy.