High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD922 SECOND APPEAL NO. 235 OF 1994NITIN MANIKCHAND KOTECHAVERSUSANIL ASARAM KHANDAGALE…..Mr. A. S. Bajaj, Advocate for AppellantMr. D. S. Bhapkar h/f Mr. V. D. Salunke, Advocate for the respondent CORAM: R. M. JOSHI, J.DATE: 21st FEBRUARY, 2025PER COURT :-1.This appeal under Section 100 of the Code of Civil Proceduretakes exception to the judgment and decree dated 08/11/1993 passed inR.C.A. No. 60/1989, whereby the First Appellate Court reversed thejudgment and decree passed by the Trial Court in Spl.C.S. No. 25/1986of dismissal of the suit and ultimately granting the decree in favour ofthe plaintiff.2.Parties are referred to as ‘plaintiff’ and ‘defendant’ for thesake of convenience.3.While admitting appeal by order dated 29/11/1991, thisCourt has framed substantial question of law as to the nature oftransaction in respect of immovable property. 922.sa235.94.odt1 of 6 4.The plaintiff filed suit before the Trial Court with avermentthat he had purchased a jeep for total consideration of Rs.97,500/-. It iscase that the defendant assured him for transferring the said vehicle inhis name after the entire loan which was obtained against the vehicle isrepaid. Plaintiff claims that from time to time total sum of Rs. 46,100/- ispaid by him to the defendant. It is further averred that on 15/01/1984defendant came to the plaintiff and sought the said jeep for the purposeof personal use for couple of days. Though the defendant took the saidjeep on his assurance, he did not return the said jeep to him. It is a caseof the plaintiff that plaintiff was always ready and willing to accept thesaid jeep by paying balance consideration. There is allegation thatdefendant neither accepted the amount nor returned the jeep. It isalleged by the plaintiff that the defendant used the said jeep carelesslyand that the said jeep has become useless. In view of this, the plaintiffclaimed to have right to seek recovery of the part consideration paid tothe defendant.5.This contention is opposed by the defendant filing writtenstatement it is denied that the amount of Rs. 46,100/- is received by thedefendant towards part payment of the consideration of the jeep. It isclaimed by the defendant that in fact plaintiff is liable to pay amounttowards the hire agreement. Counter claim is filed seeking sum of922.sa235.94.odt2 of 6 Rs.10,000/- from plaintiff.6.Issues were framed at Exhibit 12. Parties led evidence.Plaintiff examined himself at Exhibit 18. He also examined Mehtabsingand Tulshiram as his witnesses. Defendant led his evidence so also ledevidence of other three witnesses. Learned Trial Court dismissed the suitso also the counter claim. The First Appellate Court reversed the saidfindings and decreed the suit filed by the plaintiff to the extent of Rs.34,100/- along with interest at the rate of 12% per annum from the dateof suit till date of realization.7.Learned counsel for the defendant submits that from thecontents of the plaint it is clear that the plaintiff has received thepossession of the jeep in question and has stated in paragraph 3 of theplaint, he was using the said jeep as a owner thereof. Thus, it is hissubmission that suit filed by the plaintiff is for repudiation of the contractand for return of the part consideration paid to the defendant underSection 60 of the Sale of Goods Act (for short ‘the Act’). It is hissubmission that the said provision would apply only to the cases whereinthere is no actual handing over of the position of the goods in the suchtransaction.8.Learned counsel for the plaintiff opposed the said submission922.sa235.94.odt3 of 6 by contending that proceeding filed under the wrong provision cannotbecome sole ground for its dismissal. He placed reliance on the judgmentof Hon’ble Supreme Court in case of P. K. Palanisamy Versus N.Arumugham and Another, 2009(9) SCC 173, wherein it is held thatwrong mentioning of the provision would not a ground for rejection ofthe proceedings. It is his further contention that plaintiff is entitled todamages and hence suit would be tenable.9.Perusal of the plaint does not show that the suit is forrecovery of damages. In paragraph 8 of the plaint it is specifically statedthat since the jeep in question has become useless, the plaintiff has aright for repudiation of the contract and for return of the partconsideration. It is thus clear that the suit is not filed for damages butsuit is for repudiation of contact and for refund of the part consideration.10.Section 60 of the Act which reads thus:“60. Repudiation of contract before due date.—Where either party to a contract of sale repudiates thecontract before the date of delivery, the other may eithertreat the contract as subsisting and wait till the date ofdelivery, or he may treat the contract as rescinded andsue for damages for the breach.”11.This provision clearly indicates that the provision would applybefore due date and till the goods in question are delivered to thepurchaser. In this regard it is relevant to take note of averments in922.sa235.94.odt4 of 6 paragraph 3 of the plaint, wherein it is specifically stated by the plaintiffthat as agreed, the possession of the jeep was given to the plaintiff andsince then he was using the same as a owner. These pleadings are alsosufficient to demonstrate that pursuant to agreement for sale of vehicle,its possession is handed over to the plaintiff after receipt of partconsideration by defendant. In such case, question arises as to whetherit was open for the plaintiff/ purchaser to repudiate the contract, for thealleged incidents/acts of defendant post delivery of possession. Thisbecomes more relevant, in view of the fact that the suit is not filed byplaintiff for claiming damages on account of careless use of vehicle bythe defendant but return of part consideration is sought by repudiatingthe contract.12.In order to bring the suit of plaintiff for recovery of damages,there ought to have been pleadings and proof of actual damages. Inabsence thereof this Court is unable to accept the contention of thelearned counsel for the plaintiff that suit is for recovery of damages. Thenature of transaction in this case therefore does not pertain to thecontract of sale of goods but an alleged act of defendant independent tothe said contract.13.The First Appellate Court has failed to take into considerationthe pleadings of the plaint and case sought to be made by the plaintiff922.sa235.94.odt5 of 6 before the Trial Court in proper perspective. It has also ignored provisionof Section 40 of the Act. The judgment and decree impugned thereforedoes not sustain. As a result of this, the substantial question of lawdeserves to be answered in favour of defendant.14.As a result of above discussion, appeal stands allowed.Judgment and decree is set aside. The decree passed by the Trial Courtof dismissal of the suit stands restored. (R. M. JOSHI, J.)ssp922.sa235.94.odt6 of 6