Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1810 (HP)

Tirath Ram v. Dharam Dass

2015-12-07

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant Regular Second Appeal has arisen against the impugned judgement of the learned District Judge, Kullu rendered in Civil Appeal No. 14/2003, whereby the latter partly allowed the appeal of the defendant/appellant herein to the extent of the plaintiff/respondent herein being declared therein to be entitled to recover Rs.1,15,000/- along with interest at the rate of 9% per annum from the date of contract till the date of decision with future interest at the rate of 6% per annum till payment in nullification of the judgment and decree of the learned trial Court whereby it declared the respondent herein/plaintiff to be entitled to a sum of Rs.1,70,000/- along with interest @ 6% per annum from the date of institution of the suit till its realization. Standing aggrieved by the judgement of the learned District Judge, Kullu, the defendant/appellant herein has instituted the instant Regular Second Appeal before this Court assailing it. 2. Briefly stated the facts of the case are that the plaintiff was owner of a rope-way, which was sold by him to the defendant for a sale consideration of Rs.1,25,000/-. That the total sale consideration was to be paid by the defendant within one year of its purchase. It is further the case of the plaintiff that after its purchase, the defendant after dismantling the rope-way installed it between villages Trashi and Jong. The defendant failed to pay the sale consideration despite several oral requests having been made by the plaintiff. Thereafter, notice was issued to the defendant but despite service of notice, the defendant did not pay the price of the rope-way, hence, the suit for recovery. 3. The defendant contested the suit by filing written statement, wherein he has taken preliminary objections vis-a-vis cause of action. On merits, the purchase of rope-way by the defendant from the plaintiff in the year 1998 for consideration of Rs.1,25,000/- is denied but it is admitted that the said rope way was shifted and installed between villages Trashi and Jong. However, it is averred that the rope-way was shifted by the plaintiff himself and the defendant was employed as Manager on wages of Rs.10,000/- per annum for 1998 and 1999. The plaintiff paid wages for the year 1998 but did not pay the wages for the year 1999 on the pretext of suffering loss, hence, prayed for dismissal of the suit. 4. The plaintiff paid wages for the year 1998 but did not pay the wages for the year 1999 on the pretext of suffering loss, hence, prayed for dismissal of the suit. 4. The plaintiff/respondent filed replication to the written statement of the defendant/appellant, wherein, he denied the contents of the written statement and reaffirmed and re-asserted the averments, cast in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled for recovery of the suit amount? OPP 2. Whether the plaintiff has no cause of action? OPD 3. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the latter Court decreed the suit of the respondent/plaintiff. In appeal, preferred by the appellant/defendant against the judgement and decree of the learned trial Court before the learned first Appellate Court, the learned first Appellate Court partly to the extent hereinabove allowed his appeal. 7. Now the defendant/appellant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned first Appellate Court in its impugned judgement and decree. When the appeal came up for admission on 5.5.2004, this Court, admitted the appeal instituted by the defendant/appellant against the judgement and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the Courts below have treated the ropeway wrongly as movable property? 2. Whether the learned District Judge has erred in increasing rate of interest to 9% per annum from the date of contract till the date of decision without there being any cross appeal, cross objections and a plea to this effect made by plaintiff during the hearing of first appeal? 8. The renditions of this Court are entailed to stand circumscribed within the domain of the hereinabove extracted substantial questions of law formulated by it on 5.05.2004. Any rendition by this Court qua the impugned renditions of both the learned Courts below upon facets not standing encompassed within the frontiers of the hereinabove extracted substantial questions of law would be impermissible. Substantial Question of Law No.1. 9. Any rendition by this Court qua the impugned renditions of both the learned Courts below upon facets not standing encompassed within the frontiers of the hereinabove extracted substantial questions of law would be impermissible. Substantial Question of Law No.1. 9. While answering substantial question of law No.1, the pivotal fact of the rope-way orally sold by the respondent herein to the appellant standing prior to its sale by the former to the latter installed at Hallan wherefrom it purveyed goods to Sundribag is of immense significance. The rope-way necessarily carries a semblance of an apparatus donning the robe of a machinery. Prior to its oral sale by the respondent herein to the appellant herein it was installed at Hallan wherefrom it purveyed goods to Sundribag. On the appellant orally purchasing it from the respondent herein, he dismantled it for facilitating its reinstallation at Trashi for carrying goods therefrom to Jong. The dismantling by the appellant of the rope-way carrying a semblance of a machinery on his orally purchasing it from the respondent herein whereat it stood erected at Hallan for purveying goods therefrom to Sundaribag, for facilitating whereafter on its dismantling, its installation at Trashi rendered the apparatus/rope-way to on its dismantling by the appellant herein on its oral purchase by him from the respondent herein, partake the trait of a movable property. The mere fact of at the stage contemporaneous to its oral purchase by the appellant herein from the respondent herein it standing installed at Hallan for purveying goods therefrom to Sundribag does not erode the effect of its carrying the trait of its being a movable property constituted by its having come to be subsequently dismantled whereafter it stood re-installed at Trashi, more so, with its being dismantlable besides uprootable from the place where it stood installed prior to its oral purchase by the appellant herein from the respondent herein, concomitantly, a dismantlable or an uprootable apparatus which on its dismantling from Hallan stood reinstalled or erected at Trashi, cannot render it to be construable to be an immovable property permanently embedded in the earth. Obviously the parties at lis were not entailed to execute a registered deed of conveyance qua it for hence rendering its alienation by the respondent herein/plaintiff to the appellant herein/defendant attaining validation nor hence the legal efficacy of its oral purchase by the appellant herein from the respondent herein stands ousted besides, the respondent herein is not debarred from foisting a right for claiming from the appellant herein any sale consideration on its oral transfer by him to the former. Only in the event of the ropeway on its oral purchase by the appellant herein from the respondent herein having remained installed at nor standing removed from Hallan would have rendered it to be an apparatus or a machinery both irremovable besides, permanently embedded at Hallan for concomitantly its partaking the trait of immovable property enjoining the parties at lis to, for facilitating its valid transfer in favour of the alienee, execute a registered deed of conveyance qua it. Contrarily for the reasons aforesaid when it was removable besides dismantlable from the place where it stood erected at the time of its oral purchase by the appellant herein from the respondent herein which effect stood also begotten by the appellant herein from its hitherto site of installation whereafter it stood erected elsewhere rather for reiteration rendered it to partake the trait of movable property for effectuation of transfer of a right wherein an oral agreement inter se the parties at lis was sufficient rather non execution of a registered deed of conveyance inter se the parties at lis for facilitating its alienation by the respondent herein in favour of the appellant herein was wholly inconsequential for non suiting the plaintiff/respondent herein. In aftermath, the respondent herein was entitled to recover from the appellant herein the orally agreed sale consideration qua it. 10. Apart therefrom, the ground compatible to substantial question of law No.1 stood not pleaded in the written statement of the defendant/appellant herein nor any apposite issue qua it stood struck. In aftermath, the respondent herein was entitled to recover from the appellant herein the orally agreed sale consideration qua it. 10. Apart therefrom, the ground compatible to substantial question of law No.1 stood not pleaded in the written statement of the defendant/appellant herein nor any apposite issue qua it stood struck. Omission by the defendant/appellant herein to plead the aforesaid fact in his written statement constitutes its waiver by him besides constitutes an admission on his part qua the suit property partaking the character or trait of movable property, necessarily then the appellant herein is estopped at this belated stage to canvass of the apparatus/rope-way orally sold to him by the respondent herein/plaintiff being construable to be immovable property which entailed upon the respondent herein to, for validating his claim for sale consideration from him, execute with him a registered deed of conveyance qua it. Accordingly, substantial question of law No.1 is answered in favour of the respondent herein and against the appellant herein. Substantial question of law No.2. 11. The learned District Judge has palpably erred in increasing rate of interest borne by the decretal amount to 9 % per annum from the date of contract till the date of decision especially when the rendition of the learned trial Court assessing rate of interest @ 6% per annum qua the decretal amount from the date of institution of the suit till its realization stood unassailed by the respondent herein by his filing cross-objections to the appeal preferred against it by the defendant/appellant herein before the learned District Judge, Kullu or by his instituting a cross appeal therefrom before the learned District Judge. For absence of the aforesaid endeavours on the part of the respondent herein, it was grossly improper for the learned District Judge to enhance the rate of interest borne by the decretal amount from 6% per annum from the date of institution of the suit till its realization as stood assessed qua it by the learned trial Court to 9 % per annum from the date of contract till the date of decision. Consequently, the rate of interest borne by the decretal amount is assessed @ 6% per annum from the date of institution of the suit till its realization. Accordingly, substantial question of law No.2 is answered in favour of the appellant herein and against the respondent herein. 12. Consequently, the rate of interest borne by the decretal amount is assessed @ 6% per annum from the date of institution of the suit till its realization. Accordingly, substantial question of law No.2 is answered in favour of the appellant herein and against the respondent herein. 12. For the foregoing reasons, the instant appeal is partly allowed to the extent that the judgment and decree of the learned District Judge assessing qua the decretal amount rate of interest @ 9% per annum from the date of contract till the date of decision is set aside. However, its findings returned on other issues are maintained and affirmed. In sequel, the rate of interest borne by the decretal amount is assessed at the rate of 6% per annum from the date of institution of the suit till its realization. No costs. All pending applications also stand disposed of.