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2014 DIGILAW 735 (PNJ)

Balwinder Singh v. Karnal Motors

2014-04-23

RAKESH GARG

body2014
JUDGMENT Rakesh Garg, J. 1. This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby while accepting the appeal filed on behalf of the defendants, the judgment and decree of the trial Court dated 3.12.2009 has been set aside and suit for recovery of the appellant has been ordered to be dismissed. In the suit, the appellant averred that he placed an order for the purchase of Maruti Car make Zen from the defendants who were the authorized dealers of Maruti Udyog Limited at Karnal. The plaintiff submitted a demand draft dated 27.6.2000 for a sum of Rs. 3,64,165.83 paise in favour of Maruti Udyog Limited, payable at New Delhi for the purchase of above said car. The car was delivered to him by the defendants and at the time of delivery, the price of the car was Rs. 3,20,000/- only. Thus, the plaintiff had paid an extra amount of Rs. 44,165.83 paise to the defendants. He requested the defendants to make the refund of the aforesaid balance amount to him. On his request, the defendants paid an amount of Rs. 20,938/- vide demand draft dated 31.10.2000, however, the remaining amount i.e. a sum of Rs. 23,227.83 paise still remains to be paid. The plaintiff requested many times to the defendants for making the payment of said balance amount but they put off the matter on one pretext or the other. The plaintiff also got issued a notice to the defendants through his counsel which was duly received by them. Counsel for the plaintiff received reply of the defendants whereby they denied the payment of balance amount. 2. Hence, the suit was filed for recovery of a sum of Rs. 31,510/- (inclusive of Rs. 23,227.83 paise as principal amount and Rs. 8282.17 paise as interest) upto the date of filing of the suit along with future interest from the date of filing of the suit till its realization. 3. Upon notice, the defendants contested the suit raising various preliminary objections with regard to the territorial jurisdiction etc. On merits, it was submitted that car was delivered to the plaintiff through its agent and no balance whatsoever was remaining with them. The vehicle was purchased by the plaintiff through dealer and the said dealer also received the balance payment on behalf of the plaintiff. On merits, it was submitted that car was delivered to the plaintiff through its agent and no balance whatsoever was remaining with them. The vehicle was purchased by the plaintiff through dealer and the said dealer also received the balance payment on behalf of the plaintiff. Since the defendants had already made the payment, there was no cause of action for recovery of the same payment again. While denying all other allegations of the plaint, the defendants prayed for dismissal of the suit. 4. From the pleadings of the parties, the following issues were framed: "1. Whether plaintiff has paid amount to the defendant as alleged and is entitled to recover the suit amount from the defendant? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether suit is not maintainable in the present 4. Whether the suit has not been filed as per amended provisions of C.P.C., if so, its effect? OPD 5. Whether this Court has no jurisdiction? OPD 6. Whether suit is not within limitation? OPD 7. Whether suit is bad for non-joinder of necessary parties? OPD 8. Relief." 5. The parties led the evidence in support of their respective claim. 6. While passing the judgment and decree dated 3.12.2009, the trial Court arrived at a conclusion that there was no proof that the defendants had paid a sum of Rs. 23227.83 paise to the plaintiff and there was nothing on record that the plaintiff was made payment through Agent i.e. Prince Motors and thus, the defendants were under obligation to pay the balance amount of Rs.23,227.83 paise and accordingly, the suit for recovery was decreed. 7. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendants filed an appeal before the Lower Appellate Court. 8. The said appeal was accepted by the Additional District Judge, Patiala vide impugned judgment and decree dated 19.1.2011. While accepting the appeal, the Lower Appellate Court held that the trial Court at Rajpura had no territorial jurisdiction, as no cause of action had arisen in favour of the plaintiff at Rajpura. The Lower Appellate Court further found that the defendants had repaid the amount of Rs. While accepting the appeal, the Lower Appellate Court held that the trial Court at Rajpura had no territorial jurisdiction, as no cause of action had arisen in favour of the plaintiff at Rajpura. The Lower Appellate Court further found that the defendants had repaid the amount of Rs. 43,244/- to the plaintiff through the agent Prince Motors which is evident from the documents produced by the defendants on record which shows that the plaintiff had no independent dealing with the defendants and in fact all the dealings regarding purchase and payment of sale consideration were made through agent Prince Motors. For reaching to the aforesaid conclusion, the Lower Appellate Court relied upon booking form Ex. D2 vide which the appellant booked his car through Prince Motors, his agent and receipt Ex. D-7 issued by Prince Motors at the time of collecting draft and the balance payment of Rs. 22,264/- in cash. 9. Still not satisfied, the appellant has filed the instant appeal challenging the judgment and decree of the Lower Appellate Court submitting that the following substantial questions of law arise in this appeal: "(i) Whether the judgment and decree passed by the Ld. Lower Appellate Court reversing a well founded judgment and decree passed by the Ld. trial Court cannot be sustained as the same is based on mis-appreciation of the evidence and record brought by the parties? (ii) Whether Ld. Lower Appellate Court totally mis-appreciated and mis-read the evidence on record especially Ex. D-2? (iii) Whether the Ld. Lower Appellate Court has wrongly reversed the findings of the trial Court with regard to the jurisdiction of the Court by holding that the Court at Rajpura has no jurisdiction whereas the amount of Rs. 20,938/- towards part payment was received through Demand Draft at Rajpura? (iv) Whether adverse inference is to be drawn against the defendants in not impleading Prince motors as party to the suit and not challenging the order dated 19.05.2008 whereby the application u/o 1 rule 10 C.P.C. moved by the defendants was dismissed? (v) Whether the Ld. Lower Appellate Court has totally ignored to appreciate that the defendant was to explain as to under what circumstances the draft of Rs. 20,980/- towards part payment was sent to the appellant whereas the balance amount was given to Prince motors without giving any authorization? (vi) Whether the Ld. (v) Whether the Ld. Lower Appellate Court has totally ignored to appreciate that the defendant was to explain as to under what circumstances the draft of Rs. 20,980/- towards part payment was sent to the appellant whereas the balance amount was given to Prince motors without giving any authorization? (vi) Whether the Ld. Lower Appellate Court has wrongly held that the plaintiff had dealing with Prince motors in the absence of any documentary evidence in support thereof and has mis-read Ex. D2 as no name of Prince motors is mentioned in the car booking form?" At this stage, it is useful to refer to Section 20 of the C.P.C. which reads thus: "20. Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction:- a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or b) any of the defendants, where there are more than one, at the time of commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants, who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or c) the cause of action, wholly or in part, arises". It is also useful to refer to the observations of the Lower Appellate Court in this regard which reads thus: "A bare perusal of the Section 20 of the C.P.C. makes it clear that every suit shall be instituted within the local limits whose jurisdiction (i) the defendant, or each of the defendants actually and voluntarily resides or carries on business or personally works for gain, (ii) any of the defendants where there are more than one actually and voluntarily resides or carries on business or personally works for gains, provided that in such case either of the Court is given or the defendants who do not reside, or carry on business, or personal work for gain, acquiesce in that regard, (iii) the cause of action wholly or in part arises. In the instant case, the defendants M/s. Karnal Motors who have been sued through its Partner Narinder Bali, are shown to be working for gain at Karnal and the partners are resident of Karnal. As far as the cause of action is concerned, according to the plaintiff, the car was booked at Karnal. In the booking form, the plaintiff is shown to be a resident of Chandigarh. Since the delivery of the car was made at Karnal, the part of the cause of action arose to the plaintiff at Karnal. The plaintiff had repaid the outstanding amount through the demand draft. He has received the part payment through the draft. The plaintiff has not produced on record the draft, so as to prove where it was payable. In the absence of that proof, the draft was delivered to the plaintiff vide receipt Ex. D7 at Karnal. Since the plaintiff is aggrieved of the non-payment of the cash amount and the receipt Ex. D1 purports to payment of amount in cash also at Karnal, therefore under all stretch of legal implications, the cause of action wholly as well as partly arose in the jurisdiction of Karnal. No part of cause of action either arose to the plaintiff at Rajpura. The plaintiff seems to have filed the suit at Rajpura, because his counsel is practicing at Rajpura. In all the documents, the plaintiff is shown to be resident of Chandigarh. The Court is unable to understand as to how the plaintiff wants at this Court to assume that the Courts at Rajpura had jurisdiction to entertain and try the matter. So, in view of this discussion, I am constrained to hold that the learner lower Court fell in error while holding that the civil Courts at Rajpura had the jurisdiction to entertain and try the matter and for this reason the finding returned by the learned lower Court on issue No. 5 deserves to be reversed." 10. Even before this Court, counsel for the appellant was unable to dispute as to how the observations of the Lower Appellate Court were incorrect or against the evidence on record. 11. Even before this Court, counsel for the appellant was unable to dispute as to how the observations of the Lower Appellate Court were incorrect or against the evidence on record. 11. It may also be noticed that counsel for the appellant has vehemently argued that the demand draft for recovery of the amount was issued at Rajpura through the counsel for the plaintiff-appellant and thus, the Civil Court at Rajpura had the jurisdiction in this regard. Counsel for the appellant has relied upon the judgment of the Karnataka High Court in the case of M. Vittal Rao and another v. M.H. Ranganath and another, 2000 AIHC 1973. However, a perusal of the aforesaid judgment would show that the aforesaid judgment was passed in the facts and circumstances which are altogether different. In the aforesaid case, there was a specific clause incorporated in the pronote stipulating that the demand for repayment of debt thereunder could be made by the plaintiff at any time and at any place and the defendants were agreeable to meet the demand at whichever place it was made by the plaintiff and in those circumstances, the Court had held that a part of cause of action had arisen in favour of the plaintiff at a place from where demand notice was issued. There is no such stipulation in the present case and thus, the appellant cannot create jurisdiction unilaterally at Rajpura only on the ground that legal notice was sent to the defendants from Rajpura. 12. At this stage, it may further be noticed that according to the defendants, the excess amount received by them at the time of booking of the car was repaid to the plaintiff through his agent M/s. Prince Motors by way of draft for a sum of Rs. 20,938/- and Rs. 22,264/- in cash. The appellant is not disputing the receipt for a sum of Rs. 20,938/- by way of demand draft yet he has not brought on record any fact to establish that he received any amount at Rajpura to give him the cause of action as alleged by him. 13. In view thereof, no substantial question of law arises in this appeal and no fault can be found with the findings arrived at by the Lower Appellate Court. 14. 13. In view thereof, no substantial question of law arises in this appeal and no fault can be found with the findings arrived at by the Lower Appellate Court. 14. At this stage, it may be also noticed that as per the case of the appellant himself, the dispute remained with regard to the payment of Rs.23,227.83 paise and the appellant had filed the instant suit seeking recovery of the aforesaid amount along with interest @ 12% per annum w.e.f. 27.6.2000 till the filing of the suit i.e. 17.7.2003, further seeking future interest @ 12% on the suit amount till its realization. Thus, keeping in view the provisions of Section 102 or the CPC, creating a bar against filing Regular Second Appeal in a case in which amount sought to be recovered is upto Rs. 25000/- and the fact that the principal amount for the recovery of which the instant suit was filed was less than Rs. 25,000/-, in a Court having no territorial jurisdiction, this Court is not inclined to interfere in the findings of the Lower Appellate Court regarding repayment which are essentially findings of fact. 15. At this stage, this Court may also refer to the observations of the Hon'ble Supreme Court in the case of State of Uttaranchal v. Balwant Singh Chaufal and others, 2010 (1) RCR (Civil) 842 has held that the Court should ensure that the frivolous petitions must be discouraged by imposing exemplary costs or by adopting novel methods to curb such petitions. It may be noticed that appellant has put up a false plea with regard to territorial jurisdiction at civil Court at Rajpura and thus, in view of the judgment of Hon'ble the Supreme Court in case of Dalip Singh v. State of Uttar Pradesh and others, (2010) 2 Supreme Court Cases 114 such a petition should be dismissed. Hon'ble the Supreme Court in the case of Prestige Lights Ltd. v. SBI, 2007(4) R.C.R. (Civil) 46 : 2007 (4) Recent Apex Judgments (R.A.J.) 642 : (2007) 8 Supreme Court Cases 449, observes that if the litigant is guilty of suppressing the facts of not disclosing the facts such a petition be dismissed without adjudicating the appeal. 16. Hon'ble the Supreme Court in the case of Prestige Lights Ltd. v. SBI, 2007(4) R.C.R. (Civil) 46 : 2007 (4) Recent Apex Judgments (R.A.J.) 642 : (2007) 8 Supreme Court Cases 449, observes that if the litigant is guilty of suppressing the facts of not disclosing the facts such a petition be dismissed without adjudicating the appeal. 16. It is also appropriate to refer to the observations of Hon'ble the Supreme Court made in Salem Advocate Bar Association v. Union of India, 2005 (3) R.C.R. (Civil) 530, which reads as follows:- "Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefore. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer's fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow." Thus, it has been noticed in the aforesaid judgment that the costs are imposed so that the same:- (a) should act as a deterrent to vexatious, frivolous and speculative litigations or defences and the specter of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. (b) costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. Hon'ble the Supreme Court in the case of Vinod Seth v. Devinder Bajaj & Another, 2010 (3) R.C.R. (Civil) 813 observed as under:- "26. The provision relating to compensatory costs (Section 35A of the Code) in respect of false or vexatious claims or defences has become virtually infructuous and ineffective, on account of inflation. Under the said section, award of compensatory costs in false and vexatious litigation, is subject to a ceiling of Rs. 3,000/-. This requires a realistic revision keeping in view, the observations in Salem Advocates Bar Association (supra). Section 35B providing for costs for causing delay is seldom invoked. It should be regularly employed, to reduce delay. 27. The lack of appropriate provisions relating to costs has resulted in a steady increase in malicious, vexatious, false, frivolous and speculative suits, apart from rendering Section 89 of the Code ineffective. Any attempt to reduce the pendency or encourage alternative dispute resolution processes or to streaming the civil justice system will fail in the absence of appropriate provisions relating to costs. There is therefore an urgent need for the legislature and the Law Commission of India to re-visit the provisions relating to costs and compensatory costs contained in Section 35 and 35Aof the Code." 17. A Division Bench of this Court in C.W.P. No. 18346 of 2005 decided on 20.5.2009 dismissed a review petition and imposed costs of Rs. 1,00,000/- while observing that no one has the right to waste Court time. Resultantly, the appeal is dismissed with costs. Since costs should be actual to desist the litigant pursuing a frivolous litigation, it is deemed appropriate to burden the appellant with costs which are assessed at Rs. 50,000/- in the instant case. Let the costs be deposited with the Punjab State Legal Services Authority within one month from today. Appeal dismissed.