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Judgment
F.M. Reis, J.—Heard Shri J. Chagas, learned Counsel appearing for the Appellants and Shri Vijaychandra, learned Counsel appearing for the Respondent no. 2. None for the Respondent no. 1, though served. The above Second Appeal has been admitted on the following substantial questions of law:
Whether the original defendant no. 1(a) is at all liable for the loans of her husband
Whether the properties of a married man can be charged without the consent of his wife and when the other party knows, that is, whether knowledge of the other party of the above fact amounts to restricting the liability to the extent of hypothecated vehicle only as pertaining to this case
Whether taking possession of the hypothecated vehicle directly by the bank without informing the immediate owner or possessor amounts to theft on their part and is enough to discharge the original defendants
The brief facts of the case are that the Respondent no. 1 filed a suit for recovery of money against the deceased husband of Appellant no. 1(a) on the ground that the said deceased husband had obtained a loan from the Respondent no. 1 of Rs. 22,500/-which came to be granted to him on 30.04.1980. The Respondent no. 2 herein was a guarantor to the said loan. According to the Respondent no. 1, the said loan was obtained to purchase one Matador tempo Mini bus bearing no. GDS 1553. The said loan was availed of by the deceased Appellant and as a security towards the said loan, the said deceased Appellant executed a Demand Promissory Note dated 30.04.1980 in favour of the Respondent no. 1-Bank besides Agreement of Hypothecation of the said vehicle on the same date and a letter of installment dated 01.04.1980 whereby the loan was agreed to be paid by installments of Rs. 5,500/-per month together with interest. It is further the case of the Respondent no. 1 that right from the inception, the said deceased Appellant defaulted in the payment of the installment and only a sum of Rs. 15,000/-was paid in two installments. Consequently, on 01.10.1985, the outstanding amount worked out to be Rs. 41,092.35 and despite of various reminders, the said deceased Appellant failed to pay the amount and, as such, the suit came to be filed for the recovery of the amount due. The plaint was subsequently amended to the effect that the said vehicle bearing no. GDS 1553 was sold for a sum of Rs. 5,000/-in the month of December, 1988. As such, the amount claimed by the Respondent no. 1 as on the date of the filing of the suit was Rs. 41,092.35 along with interest thereon. The said original defendant no. 1-Appellant was not served for a considerable period of time and it was reported that he had expired during the pendency of the suit. The legal representatives of the said deceased Appellant were brought on record who included the Appellant no. 1(a), 1(b) and 1(c). The written statements came to be filed by the said Appellants on 20.08.1998. It was the case of the said Appellants that the late Ramakant was not legally married with the Appellant no. 1(a) as per the law prevailing in the State of Goa and, therefore, the marriage has not been registered. It is further their case that the said husband expired on 16.01.1988 and the legal representatives were joined only on 24.01.1998 and that they were not aware about the loan obtained by the said deceased. It is further their case that the said Mini bus was kept at the garage at Baina, Vasco and the engine of the said bus was sold by the Respondent no. 1. As such, it was their case, that the suit deserves to be dismissed. The Respondent no. 2 also filed his written statement which is not material for the purpose of deciding the above Second Appeal.
The learned Civil Judge, Senior Division, at Margao, after framing the issues and recording of evidence, by Judgment and Decree dated 03.05.2000, decreed the suit filed by the Respondent no. 1 and directed the Appellants to jointly and severally pay the sum of Rs. 41,092.345 with simple interest at the rate of 15% per annum from 01.10.1985 till actual payment. Being aggrieved by the said Judgment and Decree, the Appellants preferred an Appeal before the learned Addl. District Judge, South Goa, Margao, being Regular Civil Appeal no. 111/2000, which came to be disposed of by Judgment and Decree dated 21.10.2003 whereby the Appeal preferred by the Appellants came to be rejected.
Being aggrieved by the said Judgments passed by the Courts below, the Appellants have preferred the above Second Appeal which was admitted by this Court on 01.07.2004, on the aforesaid substantial questions of law.
Shri J. Silva, learned Counsel appearing for the Appellants, has assailed the impugned Judgment on the ground that the Appellant no. 1(a) is not liable to pay the loan amount as, according to him, the deceased husband was not entitled to hypothecate the vehicle without the consent of the Appellant no. 1(a) in view of the provisions of Article 1191 of the Portuguese Civil Code. The learned Counsel further pointed out that in any event, in view of the provisions of Article 1118 of the Portuguese Civil Code, even immoveable properties cannot be alienated without the consent of the other spouse. Learned Counsel further pointed out that the hypothecation was executed only by the deceased husband and there is no evidence adduced by the Respondent no. 1 to establish that any consent of the Appellant no. 1(a) was taken at the time of obtaining the said loan. Learned Counsel as such submits that the first substantial question of law deserves to be answered in favour of the Appellant.
With regard to the second substantial question of law, the learned Counsel appearing for the Appellants has pointed out that the vehicle was sold in December, 1988, without the permission of the Appellants and, as such, this action on the part of the Respondent no. 1 cannot be said to be legal. Learned Counsel further pointed out that as the said vehicle was sold for a meagre sum of Rs. 5,500/-, the Respondent no. 1 has misused their powers and, as such, the question of claiming any amounts from the Appellants does not arise at all. Learned Counsel further pointed out that any amount to be recovered on account of the loan is to be recovered only from the hypothecated vehicle and, as such, the question of claiming any amount from the Appellants does not arise at all. Learned Counsel as such submits that the second substantial question of law is to be decided in favour of the Appellants.
With regard to the third substantial question of law, learned Counsel appearing for the Appellants, has pointed out that the vehicle has been taken from the possession of the Appellants without their consent which, according to him, amounts to theft and, in view of the said theft, the question of accepting the conduct of the Respondent no. 1 in exercise of powers in the hypothecation agreement is totally illegal. Learned Counsel as such submits that even the third substantial question of law is to be decided in favour of the Appellants.
The Respondent no. 1, though served, has failed to remain present.
On the other hand, Shri Vijaychandra, learned Counsel appearing for the Respondent no. 2, has supported the impugned Judgments passed by the Courts below.
Having heard the learned Counsel and on perusal of the record, I shall first deal with the substantial questions of law framed by this Court on 01.07.2004. With regard to the first substantial question of law, the question of invoking of the provisions of Article 1191 of the Portuguese Civil Code, does not arise at all as a bare reading of the said provision, it is applicable only in cases of immoveable assets. In the present case, the hypothecation is of a vehicle which is a movable asset and, as such, the question of invoking the provisions of Article 1191 of the Portuguese Civil Code is totally misplaced. Article 1118 of the Portuguese Civil Code is attracted to the facts of the present case. On the bare reading of the said provision, the consent of the wife is not required to dispose of movable properties. In the present case, it is not the contention of any of the parties that there was gratuitous transfer in favour of Respondent no. 1. Apart from that, Appellant no. 1(a) has been brought as a legal representative of her deceased husband. Naturally to the extent of the assets inherited by the said Appellants from the deceased husband, she would be liable to pay the amount to Respondent no. 1. Hence, the said substantial question of law is decided against the Appellants.
With regard to the second substantial question of law, I find that on the basis of the material on record, both the Courts below have come to concurrent conclusion that the Appellants have failed to establish the fact that the amount of Rs. 5,500/-which has been obtained after selling the vehicle was not the real value of the vehicle. The learned Lower Appellate Court has, on appreciating the evidence on record, has come to the conclusion that the Appellants have failed to establish that there was any breach of the provisions of law whilst exercising their rights in accordance with the Agreement of hypothecation executed by the Respondent no. 1 with the deceased husband of Appellant no. 1(a). Apart from that, it is not in dispute that the deceased husband had also executed a Demand Promissory Note. Hence, on the basis of the Demand Promissory Note, the Respondent no. 1 is definitely entitled to recover the amount which is due after appropriating the amount recovered by selling the hypothecated vehicle. Apart from that, it is to be noted that the vehicle was taken from the garage and only the engine of the said vehicle could be sold. From the said aspect and taking note of the documents executed by the deceased husband specially the Demand Promissory Note, I find no merit in the submissions of the learned Counsel appearing for the Appellants that the loan had to be recovered only from the hypothecated vehicle.
With regard to the third substantial question of law, on perusal of the Appeal Memo filed before the Lower Appellate Court, I find no ground taken by the Appellants to that effect. The learned Counsel for the Appellant was unable to point out any such ground raised before the Lower Appellate Court. Hence, when such ground has not been raised before the Lower Appellate Court, the question of raising such substantial question of law before this Court, cannot be accepted. In any event, considering that the Agreement itself gave a right to the Respondent no. 1 in case there is a default in the payment of loan as per the Agreement executed by the deceased husband, I find that the action of the Respondent no. 1 cannot be said to be illegal. Apart from that, considering the fact that the Appellants have failed to establish that the price of the vehicle at the relevant time was much higher than the rate at which the engine was sold, the contention of the learned Counsel appearing for the Appellants that the value of the vehicle was much higher, cannot be accepted. Considering the overall evidence on record and taking note of the pleadings of the parties, I find that the contention of the learned Counsel appearing for the Appellants assailing the impugned Judgment on the basis of the aforesaid substantial questions of law, are totally without any substance and deserves to be rejected. Hence, the third substantial question of law is answered against the Appellants. In view of the above, I find no merit in the above Appeal which stands accordingly dismissed.