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2017 DIGILAW 1293 (GAU)

Nripen Rabha v. Ajay Kumar Patir

2017-09-15

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. 1. This long pending First Appeal of 2011 is directed against the Judgment and Decree dated 5th day of September, 2008 passed by the learned District Judge, Dhemaji in Money Suit No. 2 of 2006 whereby the suit is decreed with cost for recovery of Rs. 5,78,000/- as rent and the hired vehicle of the plaintiff/respondent herein with pendente lite and further interest from the date of the decree till realization at the rate of 6% per annum, from the defendant/appellant. The brief fact of the case is that plaintiff/respondent is the registered owner of the vehicle No. AS-22/3388 (709 Bus). The defendant/appellant entered into a written agreement with the plaintiff/respondent on 19.9.2003 to run the Bus on hired basis on payment of Rs. 17,000/- per month. As per the aforesaid agreement, the defendant/appellant took possession of the vehicle on 19.09.2003, but did not pay the rent as per agreement. According to the plaintiff/respondent, he is entitled to get Rs. 5,78,000/- as rent from the defendant/appellant and finding no alternative, had filed the Money Suit No. 2/2006. Per contra, the defendant/appellant has contended that the vehicle was in damaged condition. The plaintiff/respondent requested the defendant/appellant to repair the vehicle. Upon such request of the plaintiff/respondent, the defendant/appellant repaired the vehicle by incurring an expenditure of Rs. 1,12,000/-. On asking for the repairing cost to the plaintiff/respondent, he insisted the defendant/appellant to run the vehicle to realize the cost of repairing and thereafter, to give the share of the profit after meeting the expenses of repairing. Upon such arrangement, the defendant/appellant engaged driver, handyman etc., for plying the bus. The defendant/appellant paid Rs. 1,80,000/- in all to the plaintiff/respondent on various dates, commencing from 06.09.2003, but surprisingly, on 27.03.2005, the plaintiff/respondent came to the house of the defendant/appellant and took back the papers of the vehicle and since then, the defendant/appellant could not run the vehicle and the vehicle is lying at the Courtyard of the defendant/appellant. The defendant/appellant denied the written agreement and stated that the plaintiff/respondent requested him to put his signature on a blank paper for showing that the vehicle was lying at the garage for repairing and to liquidate the loan amount. 2. Upon pleadings of the parties, the following issues were framed: "1. Whether there is cause of action for the suit? 2. 2. Upon pleadings of the parties, the following issues were framed: "1. Whether there is cause of action for the suit? 2. Whether the defendant took the vehicle No. AS/3388 (709 Bus) of the plaintiff on hire for Rs. 17,000/- per month? 3. Whether the plaintiff is entitled to get an amount of Rs. 5,78,000/- from the defendant? 4. To what other relief the plaintiff is entitled?" 3. The plaintiff/respondent examined 3 (three) witnesses including himself and exhibited 4 (four) number of documents. The defendant/appellant, on the other hand, examined 3 (three) witnesses including himself and exhibited 4 (four) documents. 4. Heard Mr. S. Deka, learned counsel appearing on behalf of the defendant/appellant and Mr. D. Boruah, learned counsel for the plaintiff/respondent. 5. Mr. S. Deka, learned counsel for the defendant/appellant, has submitted that the dispute between the parties, who are related, rooted in the alleged mutual understanding to run the plaintiff respondent's Mini bus and subsequently, the plaintiff/respondent failed to perform his obligation, which resulted in frustration of the aforementioned oral agreement. Mr. S. Deka, learned counsel, has further submitted that by virtue of the aforesaid mutual oral understanding, the relationship between the parties was principal and agent and as such, governed by Sections 51, 52 and 213 of the Indian Contract Act. However, the learned Trial Court misinterpreted the pleadings and evidence led by the parties and further presumed the Ext. 2 as a bond. 6. Refuting the above argument of learned counsel for the defendant/appellant, Mr. D. Boruah, learned counsel for the plaintiff/respondent has submitted that the defendant/appellant in his written statement and evidence denied execution of the agreement Ext. 2, but the plaintiff/respondent has proved its execution by leading evidence, oral and documentary and the defendant/appellant has failed to establish that it is a sham or bogus document. Mr. Boruah has further submitted that the defendant/appellant, despite having acknowledged receipt of the pleader's notice did not make any reply, which negative conduct indicates his deliberate breach of the terms of the aforesaid agreement and misappropriation of the plaintiff/respondent's vehicle too. 7. On perusal of the pleading of the parties, it is seen that the crux of dispute between the parties lies in agreement, dated 19.9.2003, vide Ext. 7. On perusal of the pleading of the parties, it is seen that the crux of dispute between the parties lies in agreement, dated 19.9.2003, vide Ext. 2 purportedly entered into between them, whereby the defendant/appellant took on hire the plaintiff/respondent's 709 bus, bearing registration No. AS 223388 @ 17,000/- per month, and later on, breach of terms of the said agreement allegedly by the defendant/appellant. The defendant/appellant, however, denied entering into any such agreement and taking of the said vehicle on hire. It may pertinently be mentioned that Section 101 of the Evidence Act places the burden of proof on the person, who desires any court to give judgment as to any legal right or liability dependent on the existence of the facts, which he asserts. The Apex Court in Rangammal v. Kuppuswami & Anr. reported in (2011) 12 SCC 220 , held that the burden lies on the party who relies on the validity of a document to prove its genuineness and only then onus will shift on the opposite party to dislodge such proof and establish that the document is sham or bogus. In view of the aforesaid legal position, let us appreciate the evidence, oral and documentary, on record. 8. PW. 1, Ajay Kumar Patir, the plaintiff/respondent herein has exhibited Ext. 1, the registration certificate of the vehicle standing in his name and Ext. 2, the agreement, dated 19.09.2003 referred to above. P.W. 2 Nirmal Pegu and P.W. 2 Debamanda Patir, who were attesting witness to the creation of the said document, have corroborated the evidence of P.W. 1 so far his evidence relates to creation of the agreement vide Ext. 2 and its terms are concerned. The defendant/appellant appears to have failed to dislodge their (P.Ws. 1, 2 and 3) evidence-in-chief in cross-examination. Although the defendant/ appellant contended that the plaintiff/respondent obtained his signature on a piece of paper ostensibly for use to show his vehicle lying unused in garage and the plaintiff/respondent subsequently converted the same to an agreement fraudulently, no particulars of such alleged fraud have been set forth as per requirement of Order 6 Rule 4 of the C.P. Code to substantiate it nor disclosed such particulars in his evidence as D.W. 3 and in the evidence of his other two witnesses, D.W. 1 Rajesh Patir and D.W. 2 Rama Patir. 9. 9. As stated above, the plaintiff/respondent has proved the document vide Ext. 2 and on the other hand, the defendant/appellant has failed to prove the alleged oral understanding entered into with the plaintiff/respondent, as such, this Court is of the opinion that in view of the aforesaid reasons, it cannot be said that there existed the relation of principal and agent between them to entitle to the benefits of sections 51, 52 and 213 of the Contract Act. 10. Therefore, it is held that the defendant/appellant took the 709 bus of the plaintiff/respondent bearing registration No. AS 222388 on hire for Rs. 17,000/- per month, by creating/executing the agreement vide Ext. 2, dated 19.09.2003 and accordingly, the finding of the learned Trial Court in respect of the issue No. 2 in the affirmative is affirmed. 11. With regard to the issue No. 3 which is pertaining to the plaintiff/respondent's claim for decree of Rs. 5,78,000/-, it is noticed that the plaintiff/respondent contended that the defendant/appellant in terms of the aforesaid proved agreement vide Ext. 2 has failed to make payment of money, despite his repeated approach of him, which compelled him to issue pleader's notice, dated 26.06.2006 vide Ext. 3, by registered A/D post demanding the amount of money due to him and to return the vehicle. The plaintiff/respondent further contended that after taking possession of his said vehicle on 19.09.2003, the defendant/appellant has been using the vehicle for commercial purpose. The defendant/appellant, on the other hand, pleaded that on the request of the plaintiff/respondent, he repaired the vehicle at Ghilamara at a cost of Rs. 86,000/- on account of engine overhauling, Rs. 36,000/- for body repairing and further, that the plaintiff/respondent borrowed from him Rs. 20,000/-, which he did not repay. The defendant/appellant has also pleaded that during the period of use of the said bus for plying on road, besides engaging vehicle staff such as driver, handyman etc, he paid total sum of Rs. 1,80,000/-. Despite being so, the plaintiff/respondent issued pleader's notice demanding Rs. 5,78,000/- and return of the vehicle, which he received on 10.07.2006. 12. Turning to the evidence, it is seen that in support of the above claim, the defendant/appellant has exhibited the documents vide Ext. 'ka', a quotation, dated 28.09.2003, issued by Ganesh Engineering Works, Ext. 1,80,000/-. Despite being so, the plaintiff/respondent issued pleader's notice demanding Rs. 5,78,000/- and return of the vehicle, which he received on 10.07.2006. 12. Turning to the evidence, it is seen that in support of the above claim, the defendant/appellant has exhibited the documents vide Ext. 'ka', a quotation, dated 28.09.2003, issued by Ganesh Engineering Works, Ext. 'ka' (1) 'K' (2), 'K' (3) 'ka" (4) and 'ka' (5) estimates in 5 sheets, Exts 'kha', 'ga' and 'Gha', the books of accounts purportedly maintained by him in respect of the said vehicle. The aforesaid estimate quotation Exts. 'ka' and 'ka' (1) to 'ka' (5) would evidently mean the expenditure likely to be incurred if repairing works were carried out in respect of the vehicle and the remaining books of accounts, Exts 'kha', 'Ga' and 'Gha', the purported books of accounts maintained by the defendant/appellant in the ordinary course of business appear to have contained no certificate and signature of any person who maintained and who made the relevant entries without reference to any context. The aforesaid purported books of accounts are in different handwritings and without reference to the relevant Vehicle No. and no person who made those entries have been examined in the suit to prove those documents and entries made therein. The evidence of D.Ws 1 and 2 are related to the agreement vide Ext. 2 only, which is discussed in the foregoing issue. Therefore, having regard to the facts that the defendant/appellant's aforesaid exhibited books of accounts being casual in nature with sporadic entries made haphazardly therein and the writers being not called as witness, the same cannot be inferred to be documents regularly maintained in course of business and as such, held disproved. The defendant/appellant also appears to have not made any counter-claim against the claim of the plaintiff/respondent and he has failed to withstand the tests of cross-examination. 13. Therefore, it is held that the plaintiff respondent is entitled to get the amount claimed and no interference in the finding of the learned Trial Court on the issue No. 3 is warranted. Further, for the aforestated reasons, I see no valid reason to interfere in the findings on the issue Nos. 1 and 4 and accordingly, affirmed. 14. For the reasons, set forth above, the appeal stands dismissed. No cost. Send back the LCR along with a copy of this judgment and order. Appeal Dismissed.