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2018 DIGILAW 2215 (HP)

State Bank Of India v. Om Prakash

2018-12-14

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - The defendant is the appellant, who after having lost before both the Courts below has filed the instant regular second appeal. (Parties hereinafter referred to as the plaintiff and defendant.) 2. This case has chequered history. The plaintiff filed a suit under Section 7 of the Indian Specific Relief Act for recovery of Truck No. HPM-7028 and preliminary decree for taking accounts of the above truck. It was averred that the plaintiff had applied for a loan of Rs. 90,000/- on 05.05.1979 for purchase of truck. The defendant sanctioned a sum of Rs.55,000/- on 06.05.1979 and thereafter sanctioned another sum of Rs. 21,000/- on 17.05.1979 for purchase of trolley. Thus, a total of Rs. 76,000/- was sanctioned to the plaintiff by the defendant. The plaintiff purchased the aforesaid truck for a sum of Rs. 90,000/- and trolley of Rs.30,000/-. The plaintiff, in view of loan, executed various loan agreement including agreement for medium term loan hypothecation of vehicle on 06.05.1979 for Rs. 55,000/- and on 17.05.1979 for Rs.21,000/- in favour of the defendant. However, due to default in payment of installment, the defendant seized the hypothecated vehcile(s) i.e. Truck No. HPM-7028 alongwith its trolley and took into possession the same on 07.09.1980. This was duly acknowledged by the bank on 20.09.1980 and 22.09.1980, respectively. 3. Defendant bank subsequently filed a suit for recovery of loan amount before this Court on 17.05.1982, which on account of enhancement of pecuniary jurisdiction came to be transferred to the Court of Sub Judge, Sundernagar. Learned Sub Judge decreed the suit of the bank on 28.02.1986 for Rs. 67,253.44 alongwith future interest. However, the appeal filed by the plaintiff before the first appellate Court was partly allowed and it was held that since the plaintiff had seized the truck of the defendant, which was the only source of earning of the plaintiff, therefore, the defendant would not be held entitled to the interest from 1980 till the filing of the suit. However, the appeal filed by the plaintiff before the first appellate Court was partly allowed and it was held that since the plaintiff had seized the truck of the defendant, which was the only source of earning of the plaintiff, therefore, the defendant would not be held entitled to the interest from 1980 till the filing of the suit. It was averred that the first appellate Court while deciding the appeal had also made observation with regard to the release of the truck in favour of the plaintiff and, therefore, the plaintiff was not only entitled to take the possession of the truck but also entitled to the profits arising out of the truck from 07.09.1980 when the truck was taken into possession till the same delivered back to him. 4. The defendant opposed the suit by filing written statement, wherein, it took preliminary objections regarding limitation, cause of action etc. However, it admitted that the plaintiff availed loan from defendant for purchase of truck and trolley and further admitted the execution of the various documents. It also admitted having taken possession of the truck but claimed to have returned back the same to the plaintiff on his undertaking to repay the loan of amount. 5. On the basis of pleadings of the parties, following issues were framed on 17.08.2001:- 1. Whether the plaintiff is entitled for the release of truck bearing No. HPM-7028, as prayed for?OPP 2. Whether the plaintiff is entitled for the profits arising out from the said truck as alleged w.e.f. 7.9.1980 to the date of delivery?OPP 3. Whether the suit is barred by limitation?OPD 4. Whether the plaintiff has no cause of action?OPD 5. Whether the plaintiff is estopped from filing the suit?OPD 6. Relief. 6. After recording evidence and evaluating the same, learned trial Court partly decreed the suit of the plaintiff by holding him entitled for recovery of truck No. HPM-7028. 7. Aggrieved by the judgment and decree passed by the learned trial Court, both the parties preferred appeal before the first appellate Court. As regards the appeal filed by the defendant, the same was dismissed, whereas the appeal filed by the plaintiff was accepted and the judgment passed by the learned trial Court was modified for passing a decree for recovery of Rs.70,000/- alongwith 6% interest from the date of filing of the suit till its realization. 8. As regards the appeal filed by the defendant, the same was dismissed, whereas the appeal filed by the plaintiff was accepted and the judgment passed by the learned trial Court was modified for passing a decree for recovery of Rs.70,000/- alongwith 6% interest from the date of filing of the suit till its realization. 8. Aggrieved by the judgment and decree passed by the learned first appellate Court, the plaintiff has filed the present appeal, which was admitted on 17.08.2007, on the following substantial questions of law:- 1. Whether there has been misreading of evidence including the pleadings of the parties by both the courts below? 2. Whether the learned courts below have wrongly held that the suit was within time? 9. Before proceeding any further, it needs to be noticed that even the plaintiff had filed a separate appeal before this Court, which was registered as RSA No. 197 of 2007, however, the said appeal has been withdrawn by the defendant. Questions No. 1 and 2. 10. A perusal of the judgments passed by both the courts below would go to indicate that they have meticulously considered the pleadings and thereafter evaluated the evidence as per law. 11. At the outset, it needs to be observed that judgment and decree passed by learned Additional District Judge in the earlier litigation being Civil Appeal No. 74 of 1995, decided on 10.10.1995 had attained finality as the same was not questioned by the defendant. It would be noticed that there were certain stray observations in the aforesaid judgment which according to the plaintiff entitled him to file a suit for recovery of the truck. However, mere observations of the Civil Court cannot themselves be a ground to file a suit or claim exemption of limitation as the Civil Court has no such powers. 12. Nonetheless, in case, the plaintiff has a cause of action even contrary observations made by the learned first appellate Court, cannot restrain him from availing of his legal rights of filing a suit. 12. Nonetheless, in case, the plaintiff has a cause of action even contrary observations made by the learned first appellate Court, cannot restrain him from availing of his legal rights of filing a suit. In such circumstances, it needs to be noticed that the plaintiff could have filed a suit for possession of the truck only after he had liquidated/ paid off the entire loan amount and admittedly in this case after payment of the entire loan amount, the plaintiff had filed the instant suit within three years of this payment and, therefore, the Courts below committed no error in holding the suit to be within time. 13. As regards the other questions regarding misreading and mis-apprehension of the oral and documentary pleadings and evidence of the parties, I feel that the same is not the position in the instant case. 14. Pw1 is the plaintiff Om Parkash, who deposed that he had taken loan from defendant bank for purchasing a truck and trolley by executing hypothecation deed in favour of the bank. However, there was default in the payment of the installment, therefore, the bank seized the truck on 07.09.1980. The Bank thereafter filed a suit for recovery, which was decreed in its favour by the learned trial Court, however, some relief was granted to him by learned first appellate court with regard to interest. Thereafter, he paid the entire outstanding amount to the bank and was now entitled to get back the truck. In cross-examination, the plaintiff admitted the execution of affidavit Ext.DX but denied that he has received the truck back in the year 1980. 15. As against this, DW1 R S Sood deposed that he was Branch Manager of State Bank of India from June 1980 to July 1983, therefore, he knew the plaintiff who had taken a loan for a truck and trolley from the bank. He deposed that plaintiff was not regular in payment of installment, therefore, truck was seized by the bank on 07.09.1980. He further deposed that he was asked by the higher authorities to take affidavit from the plaintiff and release his truck and plaintiff accordingly executed affidavit Ext. DX pursuant to which the truck was released to him. 16. Evidently, the testimony of DW1 regarding the handing over of truck in favour of the plaintiff after the plaintiff having executed affidavit Ext. DX pursuant to which the truck was released to him. 16. Evidently, the testimony of DW1 regarding the handing over of truck in favour of the plaintiff after the plaintiff having executed affidavit Ext. DX is nothing short of a cock and bull story because nowhere is there any recital in the affidavit that the plaintiff has taken the possession of the truck from the defendant bank. Moreover, the defendant has also not examined any person to show that after 1980 the plaintiff was plying his truck on the road and making profit, rather the entire story set up by the defendant is belied by the observations made by learned District Judge in its judgment dated 10.10.1995, wherein in para - 9, it has been observed as under:- "9. Now coming to the effect of non-release of the seized truck on the claim of the plaintiff bank for recovery of debt, learned counsel for the appellant has argued that the plaintiff bank is not entitled to claim anything from the defendant/appellants and the appellants are entitled to take possession of the truck from the plaintiff bank. After giving due consideration to the arguments put-forth by the learned counsel for the appellants, I am of the opinion that after the seizure of the truck by the plaintiff bank in September, 1980 the plaintiff bank is not entitled to claim interest till filing of the suit because defendant/appellant Om Parkash would be liable to pay interest only if he is allowed to earn money from plying the truck, for which loan was taken. As he was not allowed to ply the truck to earn his livelihood and to pay amount after seizure of the truck, he is not liable to pay interest on the outstanding amount for the period from the day truck was seized by the plaintiff bank till the suit was filed. Once suit has been filed in the court, defendant Om Parkash could file independent suit for the release of the truck seized by the plaintiff bank and further claiming damages for non-release of the truck. No counter claim has been filed in this suit about the release of the truck or damages. There is no evidence on record, whether truck seized was sold in execution or same is still in possession of the plaintiff bank. No counter claim has been filed in this suit about the release of the truck or damages. There is no evidence on record, whether truck seized was sold in execution or same is still in possession of the plaintiff bank. In view of this, defendant/appellant Om Parkash can pursue his remedy in the appropriate court or law, if he is so advised. From September, 1980, till filing of the sit, interest of Rs.3,055.21 i.e. Rs.1151.46, Rs. 1147.14 and Rs.716.61 has been claimed as per the statement of account Ex.PB in respect of the truck and defendants/appellants are not liable to payt this amount of interest as held supra. Accordingly, I hold that plaintiff bank is not entitled to recover Rs. 3,055.21 out of the amount claimed in the suit being interest for the period from the date, truck was seized till the institution of the suit and point is accordingly decided in favour of the appellant." 17. In case the defendant seriously felt that the observations and the findings recorded by the learned first appellate Court especially with regard to the bank having retained the possession of the truck and, therefore, not entitled to interest, then there is no reason why the defendant ought not have filed an appeal before this Court. After all, the interest was denied to the bank only on the ground that it was in possession of the truck, which happens to be only source of income of the plaintiff. In view of the aforesaid discussion, both the substantial questions of law are answered against the appellant. 18. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.