Mr. Salim Ibrahim Dinginkar vs Mr. Shaikh Javid

R.M. Savant, J.—This Second Appeal takes exception to the judgment and decree dated 27.2.2009, passed by the learned Addl. District Judge I, Fast Track Court, South Goa, by which judgment and decree the appeal filed by the respondent herein came to be allowed and resultantly, the judgment and decree passed by the trial court dated 30.9.2008 came to be set aside. The respondent herein is the original plaintiff and the appellant is the original defendant in Regular Civil Suit No. 21/2007. They would be referred to as such in the present order. The plaintiff has filed the said suit for seeking specific performance of the oral agreement which was arrived at between him and the defendant in respect of the transfer of motor vehicle being in the nature of a Tata mini bus bearing No. GA02-T-4159 alongwith the permit. It was the case of the plaintiff that he accepted the offer of the defendant to purchase the said vehicle for Rs. 4,90,000/- which was accepted by him because he was getting the said vehicle alongwith the permit to run the bus from Vasco city to New Vaddem and vice versa. It is the case of the plaintiff that he had agreed to pay an amount of Rs. 1,90,000/- to the defendant and the balance amount of Rs. 3,00,000/- was to be paid to the Vasco Urban Co-operative Credit Society Ltd. against the loan and it remained unpaid. As the defendant was irregular in making the payment to the bank, the plaintiff and the defendant approached the said financial institution i.e. Vasco Urban Co operative Credit Society Ltd. to subrogate the plaintiff in place of the defendant to clear up the loan of the said, financial institution.

It is further the case of the plaintiff that he invested Rs. 60,000/- for the replacement of some parts and repairs to the suit vehicle and that he has paid regularly the road tax, passengers tax, permit fees and also got the suit vehicle tested for running on the said road. The suit vehicle and the suit permit were not transferred as defendant failed to comply the necessary R.T.O. formalities in Form No. 29 and 30 as per the Motor Vehicle Act. The plaintiff therefore, addressed a letter dated 20.11.2005 calling upon the defendant to do the needful in order to transfer the suit vehicle and permit in the name of the plaintiff. Since the defendant did not transfer the suit vehicle and permit in the name of plaintiff, the plaintiff was constrained to file the said suit.

The defendant i.e. the respondent herein filed his written statement in the said suit and denied the case of the plaintiff. It was the case of the defendant that he had agreed to sell, only the suit vehicle to the plaintiff and not the permit. It was further the case of the defendant that the defendant had allowed the plaintiff to temporarily use the vehicle and permit, however, plaintiff has misused the same and since plaintiff refused to return the permit, the defendant was constrained to file a complaint on 25.11.2005 with the Vasco Police Station. It is further the case of the defendant that he is ready and willing to transfer the vehicle in the name of plaintiff and not the permit and therefore sought dismissal of the suit.

On the basis of the pleadings, the trial court framed the following issues:-

Does plaintiff proves that defendant sold him suit vehicle alongwith suit permit?

Whether the defendant proves that the suit is barred by limitation?

Whether the defendant proves that the plaintiff has no locus standi to file the present suit?

The trial court on the basis of the pleadings recorded an affirmative finding in respect of issue No. 1 and 3 and in so far as the second issue was concerned, the trial court dismissed the suit on the ground that it was barred by limitation as according to the trial court the agreement was to be complied with by October, 2001 and therefore, the suit filed in the year 2007 was beyond the period of limitation as prescribed by Article 54 of the Limitation Act. The trial court therefore, dismissed the suit on the ground of limitation.

Aggrieved by the dismissal of the suit, the defendant filed an appeal being Regular Civil Appeal No. 126/2008. The lower appellate court confirmed the findings of the trial court in respect of issue No. 1 and 3 which were framed by the trial court. However, in so far as issue No. 2 was concerned, the appellate court held that the suit was within limitation as in terms of Article 54 of the Limitation Act a suit for specific performance is to be filed within a period of 3 years from the date fixed for the performance or if no such date is fixed when plaintiff has notice that performance is refused in the instant case the oral agreement according to plaintiff had been arrived at in October, 2001, as such the refusal or the denial of performance by the respondent was on 9.6.2006 when the transport authority addressed letter to the plaintiff that the permit could not be transferred in view of the objection raised by the defendant. The suit filed in the year 2007 was within limitation. The first appellate court therefore reversed the finding of the trial court in so far as the issue of limitation is concerned and held that the suit as filed was within limitation and therefore, set aside the judgment and order of the trial court and consequently has decreed the suit.

On behalf of the appellant i.e. Original defendant, it was sought to be contended by the learned counsel that the finding of the appellate court that the refusal of performance by the defendant was on 9.6.2006, in the teeth of the evidence on record is unsustainable. The learned counsel further submitted that in view of section 89 of the Motor Vehicle Act, 1985, the suit itself was not maintainable, as against the rejection of an application for transfer of permit the statute itself provides the remedy and a suit cannot be filed for the same. The learned counsel for the appellant submitted that the first appellate court has erred in decreeing the suit.

Taking the first contention, of the learned counsel for the appellant, it is well settled that the finding in respect of limitation recorded on appraisal of evidence and the circumstances of the case is a finding of fact and this Court sitting in second appeal cannot make a fresh appraisal of the evidence and come to different finding contrary to the finding recorded by the first appellate court. The finding of the first appellate court was on the basis of the appraisal of the material on record and taking into consideration the entire circumstance of the case, a finding of fact which in my view cannot be set aside or cannot be interfered by this Court in a Second Appeal. A useful reference could be made to the judgment of the Supreme Court in Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, , which is reproduced below:

This plea was however negatived by the High Court as it has never been taken when the case was remanded to the First Appellate Court by judgment dated 8th February 1961. Besides the question requires investigation into certain facts which was not possible in the Second Appeal. The High Court however reversed the finding of the First Appellate Court on the question of limitation relying on the so called admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of the defendant. Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding contrary to the finding recorded by the First Appellate Court which the High Court could not do in the exercise of power under S. 100 of the Civil P.C. Even on merits, if the High Court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other. The High Court, in our opinion, has erred in making a fresh appraisal of the evidence to come to a different conclusion. Even otherwise, the plaintiff has to stand on his own strength.

In so far as the second submission of the learned counsel for the petitioner is concerned, the suit in question was a suit for specific performance of an oral agreement for the transfer of the suit vehicle and the suit permit. The said transfer of the permit has been refused by the transport authority in view of the objection raised by the defendant. It was not a case where the transport authority had refused permission for transfer on account of an ineligibility of the plaintiff for the same. The refusal to transfer was only on the ground that the defendant had objected to the same. The plaintiff having filed the suit in question for specific performance of the agreement was entitled to agitate the same in the said suit and therefore, the bar of Section 89 would not apply.

As mentioned herein above, both the Courts below have recorded concurrent findings of fact as regards the sale of the suit vehicle alongwith the suit permit as also in respect of the locus standi of the plaintiffs. In so far as the issue of limitation is concerned, the finding of the appellate court does not merit any interference for the reasons stated herein above. Having heard the learned counsel for the appellant and the learned counsel for the respondent and having perused the grounds of appeal, in my view, no substantial question of law arises. The Second Appeal is accordingly dismissed.