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2019 DIGILAW 1025 (HP)

Mool Raj Sharma v. Prem Chand Sharma

2019-07-25

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has prayed for setting aside the judgment and decree passed by the Court of learned District Judge, Hamirpur, H.P., in Civil Appeal No.55 of 2015, titled as Prem Chand Sharma Versus Mool Raj Sharma, decided on 31.10.2017, vide which learned Appellate Court while accepting the appeal filed by the present respondent, set aside the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No.III, Hamirpur, H.P. in Civil Suit No.112 of 2009, decided on 27.2.2015, titled as Prem Chand Versus Mool Raj Sharma and decreed the suit of the plaintiff (present respondent) for Specific Performance of Agreement dated 18.2.2012, with a further issuance of a writ of permanent prohibitory injunction against the defendant not to sell or transfer the vehicle in dispute to any person along with route permit in terms of agreement dated 18.2.2002. 2. Brief facts necessary for adjudication of the present appeal are that respondent herein (hereinafter to be referred as the 'plaintiff') filed a suit for Specific Performance of Agreement dated 18.2.2002, with a further prayer of mandatory injunction against the present appellant (hereinafter to be referred as the 'defendant'), to transfer the Registration Certificate alongwith route permit of vehicle bearing registration No.HP554786 in favour of the plaintiff in terms of agreement dated 18.2.2002 and for injuncting the defendant from selling or transferring the vehicle to any person along with the route permit. 3. The case of the plaintiff was that an agreement was entered into between him and the defendant dated 18.2.2002, for purchase of vehicle bearing registration No.HP554786 alongwith route permit for a total consideration of Rs. 3,75,000/. Defendant was the owner of the vehicle. On the date of execution of the agreement, a sum of Rs. 1,25,000/was paid by the defendant to the plaintiff as earnest money and the balance sale consideration was to be paid as per the terms and conditions of the agreement. After payment of the entire sale consideration, the plaintiff and defendant executed affidavits dated 18.5.2002, with respect to receipt of full and final sale consideration. Defendant had mentioned in his affidavit that he had no objection for transfer of the Registration Certificate of the vehicle in the name of the plaintiff. After payment of the entire sale consideration, the plaintiff and defendant executed affidavits dated 18.5.2002, with respect to receipt of full and final sale consideration. Defendant had mentioned in his affidavit that he had no objection for transfer of the Registration Certificate of the vehicle in the name of the plaintiff. According to the plaintiff, though he had performed his part of the agreement, however, defendant was delaying the matter on one pretext or the other. At the time of execution of the agreement, the possession of the plaintiff already stood handed over to the plaintiff by the defendant and it was the plaintiff, who was since then paying all the taxes etc. of the bus. As per the plaintiff, in terms of the agreement entered into between the parties and affidavits sworn by them, plaintiff was legally entitled to get the Registration Certificate and route permit of the bus transferred in his name. For the said purpose, he had served a legal notice upon the defendant on 7.5.2009, however, defendant did not bother to reply. According to the plaintiff, cause of action accrued in his favour in the second week of May, 2009 when the defendant refused to get the Registration Certificate and route permit of the vehicle transferred in the name of the plaintiff. Hence, he filed the suit. 4. The defendant contested the case inter alia, on the ground of non-maintainability and limitation. He though admitted that the sale agreement was entered into for the sale of the bus between him and the plaintiff, however, he denied that the route permit of the bus was also sold by him to the plaintiff. His defence was that the complete sale consideration was not paid by the defendant and an amount of Rs. 1,25,000/was not paid by the plaintiff to the defendant. As per the defendant, the averments made by him in the affidavit were made in good faith upon the assurance given by the plaintiff that he would make the entire sale consideration to the defendant. Defendant also stated that he had requested the plaintiff to hand over the possession of the bus to him, however, plaintiff had failed to do so and the same was being plied by the plaintiff illegally. 5. On the basis of the pleadings of the parties, learned trial Court framed the following issues: "1. Defendant also stated that he had requested the plaintiff to hand over the possession of the bus to him, however, plaintiff had failed to do so and the same was being plied by the plaintiff illegally. 5. On the basis of the pleadings of the parties, learned trial Court framed the following issues: "1. Whether the plaintiff is ready and willing to perform his part of agreement dated 18.2.2002, as alleged? OPP. 2. Whether the plaintiff is entitled for mandatory and permanent prohibitory injunction, as prayed for? OPP. 3. Whether the route permit has not been sold and consideration amount of Rs. 1,25,000/remains to be paid to defendant? OPD. 4. Whether suit is not maintainable in its present form? OPD. 5. Whether the plaintiff has got no cause of action to file the present suit?. 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 7. Whether the suit is time barred? OPD. 8. Relief". 6. On the basis of evidence led by the parties in support of their respective contentions, learned Trial Court returned the following findings on the issues so framed:" Issue No.1 : Yes. Issue No.2 : No. Issue No.3 : Partly Yes. Issue No.4 : yes. Issue No.5 : yes. Issue No.6 : No. Issue No.7 : Yes. Relief : Suit of the plaintiff is dismissed with no order as to costs as per operative part of the judgment". 7. Vide judgment and decree dated 27.2.2015, learned trial Court dismissed the suit by holding that there was no valid sale of the route permit. While arriving at the said findings, learned trial Court held that Section 82 of the Motor Vehicles Act clearly contemplated that a permit shall be non transferable without permission of the granting Authority and any such transfer without permission shall not confer any right under the permit on the transferee. Learned Trial Court held that there was nothing on record to show that permission from the Transport Authority to transfer the permit was obtained by the parties and on these basis, it held that there was no valid sale of the route permit. Learned Trial Court held that there was nothing on record to show that permission from the Transport Authority to transfer the permit was obtained by the parties and on these basis, it held that there was no valid sale of the route permit. Learned trial Court also held that the suit was barred by limitation as in terms of agreement Ext.PW1/A, the date of performance of contract was 10.4.2002 and if the period of limitation is reckoned from the said date, the suit was barred by limitation. Learned trial Court also held that irrespective of whether 10.4.2002 was considered to be the date of performance, the suit appeared to be time barred as the plaintiff had failed to mention any particular date when he gained knowledge about the nonperformance of the contract and by applying the reasonable man's test, it could not be said by any stretch of imagination that plaintiff had not gained knowledge of the nonperformance of contract till May, 2006 as from the year 2002. On these basis, learned trial Court dismissed the suit of the plaintiff. 8. Feeling aggrieved, plaintiff filed an appeal. 9. Learned Appellate Court vide judgment and decree dated 31.10.2017, allowed the same by setting aside the judgment and decree passed by the learned trial Court. Learned Appellate Court held that perusal of the evidence led by the parties, demonstrated that defendant himself admitted that he had sold the bus alongwith route permit as per the agreement. It held that defendant had sworn an affidavit that he had received total sale consideration to the tune of Rs. 3,75,000/, as agreed between the parties on 18.5.2002 and on this count, his pleadings that he had not received an amount of Rs. 1,25,000/on account of the sale consideration was not sustainable. Learned Appellate Court further held that on 18.2.2002, an agreement was executed between the plaintiff and the defendant for sale of bus bearing registration No.HP554786 alongwith route permit for a total sale consideration of Rs. 3,75,000/. It further held that it was an admitted fact that plaintiff was plying the bus since the year 2002 when the parties had entered into the agreement and it was the plaintiff who was depositing the taxes and other charges also of the bus. 3,75,000/. It further held that it was an admitted fact that plaintiff was plying the bus since the year 2002 when the parties had entered into the agreement and it was the plaintiff who was depositing the taxes and other charges also of the bus. Learned Appellate Court further held that plying of the bus by the plaintiff was with the knowledge of the Transport Authority as the plaintiff was depositing route permit fee etc. and other charges also to the Transport Authority. Learned Appellate Court also held that affidavit Ext.PW5/A executed by purchaser Prem Chand, demonstrated that full and final payment of the sale transaction stood paid and this affidavit was duly attested by Public Notary at Ghumarwin and the affidavit of the defendant was on record as Ext.PW5/A, vide which he had acknowledged the receipt of full and final payment and had stated that he had no objection if the Registration Certificate was changed/ transferred in the name of the plaintiff. Learned Appellate Court also took note of the fact that the defendant himself had applied to the Director, Transport, Shimla, for transfer of the permit, meaning thereby that he had sold the route permit alongwith the bus. It further held that the cause of action accrued in favour of the plaintiff when defendant refused to transfer the permit and Registration Certificate in the name of the appellant in the year 2009 and thus, trial Court had not properly appreciated the evidence and had wrongly dismissed the suit of the plaintiff on the ground of limitation. On these basis, learned Appellate Court set aside the judgment and decree passed by the learned trial Court and allowed the appeal in the following terms "In view of my findings on the aforesaid point, the appeal is allowed and the impugned judgment and decree dated 27.02.2015 passed by the learned trial Court is setaside. The suit of the plaintiff is decreed and the defendant is directed to perform his part of agreement Ext.PW1/A i.e. to transfer the RC alongwith route-permit of the bus bearing No.HP554786 in the name of plaintiff/appellate. The parties are left to bear their own costs. Decree Sheet be prepared accordingly. Record of the trial Court alongwith copy of this judgment be returned and the file of this Court, after due completion, be consigned to the Record Room". 10. Feeling aggrieved, the appellant/defendant has filed this appeal. 11. The parties are left to bear their own costs. Decree Sheet be prepared accordingly. Record of the trial Court alongwith copy of this judgment be returned and the file of this Court, after due completion, be consigned to the Record Room". 10. Feeling aggrieved, the appellant/defendant has filed this appeal. 11. This appeal was admitted on 18.12.2018, on the following substantial questions of law: "1. Whether the judgment of learned Appellate Court is vitiated on account of the misinterpreting the provisions of Section 82 of the Motor Vehicles Act which forbid the transfer of route permit without permission of transfer authority? 2. Whether the findings of learned Lower Appellate Court are erroneous on the point of limitation as per the own prospective vendee got the possession of vehicle in 2002 and not enforcing his alleged right within 3 years and suit filed in year 2009 is time barred? 3. Whether the Courts below misread, misappreciated and misconstrued the provisions of law, pleadings and evidence adduced on record, as a result of which, findings came to be vitiated?" 12. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by both the learned Courts below as well as record of the case. 13. I will deal with all the substantial questions of law independently vis-a-vis the submissions made by learned counsel in support of their respective contentions. Substantial question of law No.1: "1. Whether the judgment of learned Appellate Court is vitiated on account of the misinterpreting the provisions of Section 82 of the Motor Vehicles Act which forbid the transfer of route permit without permission of transfer authority? " 14. Learned counsel for the appellant has argued that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law as learned Court has erred in not appreciating that in view of the statutory provisions of Section 82 of the Motor Vehicles Act, Route Permit was forbidden to be transferred by the parties to whom it was originally granted and in this view of the matter, agreement to the contrary entered into between the appellant and the respondent was a void agreement and not enforceable in law. 15. 15. On the other hand, learned Senior Counsel for the respondent has argued that there is no misreading or misinterpretation of Section 82 of the Motor Vehicles Act by the Appellate Court as Section 82 of the Act does not per se forbid the transfer of the route permit as pleaded by learned counsel for the appellant. All that is required is that the transfer has to be with the prior permission of the Authority concerned. 16. Having heard learned counsel for the parties, in my considered view, there is no misinterpretation of the provisions of Section 82 of the Motor Vehicles Act by the learned Appellate Court. Section 82 of the Motor Vehicles Act, inter alia provides that a permit shall not be transferred from one person to another except with the permission of the Transport Authority, which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorized by the permit. Thus, all that this provision requires is this that transfer of a permit has to be with the permission of the Transport Authority, which granted the permit. This Section further contemplates that without such permission, a person to whom a vehicle covered by the permit is transferred, shall not get any right to use that vehicle in the manner authorized by the permit. 17. Coming to the facts of the present case, the decree prayed for by the plaintiff was for Specific Performance of the Agreement, in which the defendant had inter alia agreed to transfer route permit of the bus in issue in favour of the plaintiff. Incidentally, the plaintiff in the witness box has admitted that at the time when he entered into the agreement to sell the vehicle in issue to the plaintiff, he had agreed to transfer the route permit also. In this view of the matter, appellant herein cannot be permitted to say that he will not perform his part of the contract on the pretext that the same is forbidden by Section 82 of the Motor Vehicles Act. In this view of the matter, appellant herein cannot be permitted to say that he will not perform his part of the contract on the pretext that the same is forbidden by Section 82 of the Motor Vehicles Act. In view of defendant having agreed to transfer the route permit of the bus in issue to the respondent, he has to perform his part of the contract by completing formalities thereof for transfer of the route permit in favour of plaintiff. Thereafter, whether or not the route permit shall be transferred by the Transport Authority, which granted the permit, is a discretion which the Authority shall exercise once, a request is made to it for the transfer of the said route permit which obviously will only be made after the present appellant completes formalities in this regard. Therefore, it cannot be said that the judgment passed by the learned Appellate Court is vitiated on account of misinterpretation of Section 82 of the Motor Vehicles Act. Simply because the Transfer of route permit can only be with the permission of the statutory authority, same is no bar that an agreement cannot be entered into for transfer of the route permit. Of course, as already observed hereinabove, whether or not the authority permits the transfer is its discretion which such authority has to exercise in the facts of each individual case. Substantial question of law No.1 is answered accordingly. Substantial question of law No.2: "2. Whether the findings of learned Lower Appellate Court are erroneous on the point of limitation as per the own prospective vendee got the possession of vehicle in 2002 and not enforcing his alleged right within 3 years and suit filed in year 2009 is time barred?" 18. Learned counsel for the appellant has argued that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law as the said Court erred in not appreciating that the suit filed by the plaintiff was not within limitation. He has argued that the suit was filed for Specific Performance of Agreement dated 18.2.2002, in the year 2009. According to him, time was the essence of the agreement and the suit for Specific Performance thereof could have been filed only within a period of three years only from 10.4.2002, which was the date contemplated in the agreement for compliance of the terms thereof by the parties. According to him, time was the essence of the agreement and the suit for Specific Performance thereof could have been filed only within a period of three years only from 10.4.2002, which was the date contemplated in the agreement for compliance of the terms thereof by the parties. 19. On the other hand, learned Senior Counsel for the respondent has argued that time was not the essence of the agreement. He has submitted that by 10.4.2002, the owner of the vehicle was to provide Tax No Objection Certificate and Financial No Objection Certificate. He has further submitted that there are two affidavits on record dated 18.5.2002, filed by the plaintiff and defendant, which demonstrate that full and final payment of the consideration of the bus in issue was paid by the purchaser to the seller as on the said date, despite this, the seller failed to get the route permit transferred in the name of the purchaser. He has further submitted that as the seller was delaying the matter with regard to transfer of the route permit, a legal notice was also issued to the seller i.e. the present appellant, dated 7.5.2009 (Ext.PW1/C) and when the appellant did not respond to the said legal notice also, it is then that this suit was filed by the present respondent. 20. The agreement, specific performance of which was sought by the plaintiff, is on record as Ext.PW1/A. A perusal of the same demonstrates that this agreement was entered into between the plaintiff and defendant on 18.2.2002 with regard to the sale of bus No.HP554786. Total sale consideration was Rs. 3,75,000/alongwith the permit of the bus. An amount of Rs. 1,25,000/was paid by the plaintiff to the defendant as token amount and the balance was to be paid in the following manner: (a) Rs. 1,25,000/by 15.03.2002. . (b) Balance amount of Rs. 1,25,000/, upon the owner of the bus submitting an affidavit with regard to full and final payment along with Tax No Objection Certificate and Financial No Objection Certificate, for which, date fixed was 10.4.2002. 21. There are also on record two affidavits, dated 20.6.2012, Ext.PW5/A and Ext.PW5/B, respectively. 1,25,000/by 15.03.2002. . (b) Balance amount of Rs. 1,25,000/, upon the owner of the bus submitting an affidavit with regard to full and final payment along with Tax No Objection Certificate and Financial No Objection Certificate, for which, date fixed was 10.4.2002. 21. There are also on record two affidavits, dated 20.6.2012, Ext.PW5/A and Ext.PW5/B, respectively. Ext.PW5/A is the affidavit of plaintiff Prem Chand, in which it is mentioned that he had purchased the bus in issue from the defendant and that he had paid full consideration of the said bus to the defendant and that the bus was in possession of the plaintiff. Affidavit Ext.PW5/B filed by defendant Mool Raj Sharma, is to the effect that he had sold the bus in issue to the plaintiff and had received full consideration thereof, he had delivered the possession of the bus to the purchaser and he had no objection if the Registration Certificate was changed/ transferred in the name of the plaintiff. It appears that when the route permit of the bus was not got transferred by the defendant in favour of the plaintiff, the plaintiff issued a legal notice to the defendant dated 7.5.2009, which is on record as Ext.PW1/C. The plaintiff has also placed on record Ext.PW3/A, which is copy of challan issued by the Competent Authority to demonstrate that the plaintiff was paying passengers and goods taxes of the bus in issue. 22. The arguments of learned counsel for the appellant that time was the essence of the agreement is negatived by the statement of the appellant as DW1, wherein in his crossexamination, he stated that it was correct that when Ext.PW1/A was executed, no time limit was fixed in the same. He also agreed to the suggestion that the agreement was entered into between him and the plaintiff that the vehicle was to be sold alongwith route permit. In this view of the matter, there is no perversity with the findings returned by the learned Appellate Court wherein it has been held that the cause of action accrued in favour of the plaintiff when defendant refused to transfer the permit and the Registration Certificate in the name of the appellant in the year 2009. This Court concurs with the findings so returned by the learned Appellate Court. This Court concurs with the findings so returned by the learned Appellate Court. The appellant has not been able to demonstrate that the entire sale consideration of the bus was not paid to him by the plaintiff. He has also not been able to demonstrate that though he was always willing to perform his part of the agreement, the route permit and other permit could not be transferred because of the acts of omissions of the plaintiff. Issuance of the legal notice by the plaintiff to the defendant dated 7.5.2009 has also not been denied by the appellant. Taking into consideration these facts, coupled with the statement of the defendant himself wherein he has conceded that the time was not the essence of the agreement and further that he had agreed to transfer/ sell the route permit in favour of the plaintiff, in my considered view also, the cause of action again accrued in favour of the plaintiff, when the defendant failed to had the route permit and other permits of the bus, transferred in the name of the plaintiff after the issuance of the legal notice dated 7.5.2009. Substantial question of law No.2 is answered accordingly. Substantial question of law No.3: "3. Whether the Courts below misread, misappreciated and misconstrued the provisions of law, pleadings and evidence adduced on record, as a result of which, findings came to be vitiated?" 23. Though it has been contended by learned counsel for the appellant that the judgment passed by the learned Appellate Court is not sustainable in law as the same was the misreading and misappreciation of the pleadings and evidence on record, however, he could not substantiate during the course of arguments, as to which particular pleading on record or evidence on record was misread or misappreciated by the learned Appellate Court. To satisfy the judicious conscience of this Court, this Court with the assistance of the learned counsel for the parties, went through the pleadings as also the evidence on record and perusal thereof demonstrates that the findings returned by the learned Appellate Court are duly borne out from the record of this case and therefore, it cannot be said that there is any misreading or misconstruction of the pleadings or evidence on record. Substantial question of law No.3 is answered accordingly. 24. Substantial question of law No.3 is answered accordingly. 24. In view of the findings returned hereinabove, as this Court does not finds any merit in the present appeal, the same is accordingly dismissed. Pending miscellaneous application(s), if any, stand disposed of. Interim order, if any, also stands vacated.