## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT :**
**THE HONOURABLE MR. JUSTICE P.BHAVADASAN**
**TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933**
## **AS.No. 257 of 1994**
**---------------------------**
**[AGAINST THE DECREE AND JUDGMENT DATED 31/07/1993 IN O.S.NO.4/1991 OF ADDITIONAL SUB COURT,ATTINGAL]**
**....................**
## **APPELLANT/PLAINTIFF:**
**-----------------------------------**
- **ALIYAR KUNJU, S/O. EBRAHIM, RESIDING AT A.K. MANZIL, KALLAMBALAM, THOTTAKADY DESOM, KARAVARAM VILLAGE. *(DIED).**
## ***ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED:**
**2. M.NABEESA BEEVI, W/O. LATE ALIYAR KUNJU, 59 YEARS, A.K. MANZIL, KALLAMBALAM, KARAVARAM VILLAGE, TRIVANDRUM DISTRICT.**
**3. NISSA, D/O. LATE ALIYARKUNJU, W/O. NASSAR, 35 YEARS, T.C. NO. 77/2228, CHAKKA, PETTAH.P.O., THIRUVANANTHAPURAM DISTRICT.**
**4. ZEENATH, D/O. LATE ALIYARKUNJU, W/O. A. FEROZ AFTHAB, 33 YEARS, FEROZ MANZIL, VALLAKKADAVU, THIRUVANANTHAPURAM - 8.**
**5. A. SALEEM, S/O. LATE ALIYARKUNJU, 30 YEARS, A.K. MANZIL, KALLAMBALAM, KARAVARAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.**
***LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 5 AS PER ORDER DATED 16/08/10 ON C.M.P.NO.2641/2002.**
**BY ADV. SRI.M.P.RAMNATH.**
**A.S. NO. 257/1994:**
## **RESPONDENT/DEFENDANT:**
**-----------------------------------------**
**NIZARUDEEN, S/O. JAMAL MOHAMMED, CHANTHAVILAKATHU VEEDU, KALLAMBALAM, NAVAIKULAM DESOM, NAVAIKULAM VILLAGE.**
**BY ADVS. SRI G.S RAGHUNATH, SRI. R.S KALKARA,**
**SRI. M.J GEORGE.**
**THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/09/2011, ALONG WITH A.S. NO. 317 OF 1994 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Prv.**
## **P. BHAVADASAN, J**
**- - - - - - - - - - - - -- - - - - - - - - - - - - - - - A.S Nos. 257 & 317 OF 1994**
**- - - - - - - - - - - - - - - - - - - - - - - - - - - -**
## **Dated this the 27[th] day of September, 2011**
## **J U D G M E N T**
Aggrieved by the judgment in O.S No.4 of 1991, the plaintiff has filed A.S No.257 of 1994. The defendant in the said O.S has filed A.S No.317/1994. The suit filed by the plaintiff was partly decreed and the counter claim filed by the defendant was dismissed.
2. Transaction related to a purchase of a car bearing registration No.KLG 658. The price agreed to was `1,42,500/-. A1 is the relevant agreement. It is seen that there was a higher purchase payment outstanding. An amount of `43,500/- was due under that head. Deducting that amount the plaintiff had to pay `99,000/- towards the price of the car. Out of the said amount `30000/- was paid on 1.11.1990. The balance amount of `69,000/-had to be paid within 30 days from Ext.A1. On the date of Ext.A1the vehicle was handed over to the plaintiff. The plaintiff would say that even though he purchased the vehicle bonafide believing that it was in a good condition he soon found that it was otherwise and had to
A.S No.257/1994 & 317/1994
: 2 :
take the vehicle to the workshop. He incurred an expense of `9,590/-for getting the vehicle repaired and to make it road worthy. Later, when the plaintiff enquired with the finance company it was found that the amount outstanding was not `43,500/- but it was `47,215/-. It is claimed that he paid a sum of `3,150/- to the finance company to ward off unpleasant situations. The complaint of the plaintiff is that on 10.12.1990 when the car taking fuel from the petrol pump, it was forcibly taken away by the defendant. The plaintiff claimed a sum of `64,999/- due to him from the defendant as a result of forcible seizure of the vehicle by the defendant.
3. The defendant resisted the suit. According to the defendant the vehicle was handed over in a good condition and the claim of the plaintiff that immediately thereafter he had to take the vehicle to the workshop is untrue. It was the plaintiff who was in breach of the terms of the agreement and the defendant claims that he was entitled to repossess vehicle due to the default committed by the plaintiff. According to the defendant the plaintiff had used the car for 41 days he estimated his loss at `29652.50. The defendant also pointed out that he had to carry out some repairs to the vehicle and
A.S No.257/1994 & 317/1994
: 3 :
incurred expenses in that regard also. No amounts according to him were liable to be paid to the plaintiff and he preferred counter claim for the amount due to him.
4. On the basis of the above pleadings issues were arrived by the trial court. The evidence consists of testimony of PWs 1 and 2, documents marked as Exts.A1 and A2 by the plaintiff. The defendant had DW1 and DW2 examined and Exts.B1 and B2 marked. On an appreciation of the evidence in the case the trial court found that the plaintiff is entitled to a sum of `54650/- and granted a decree for that amount. The Court declined to grant claim of the plaintiff towards the repairs of the vehicle which was estimated at `9165/-. Counter claim filed by the defendant was dismissed. The aggrieved parties have come up in appeal.
5. The only question that arises for consideration is whether judgment and decree of the trial court call for any interference. Ext.A1 is an admitted document. It is not in dispute that `50000/- was paid by the plaintiff towards the price of the car. It is also not in dispute that the vehicle was forcibly seized on 10.12.1990 by the defendant. The defendant would claim that it was the plaintiff who had
A.S No.257/1994 & 317/1994
: 4 :
committed breach of the contract and the plaintiff would say otherwise.
6. Plaintiff has adduced evidence as PW1 in support of his case. The lower court also accepted his case that he had to pay a sum of `3150/- to the financier to avoid seizure of the vehicle by the financier. However, the lower court was disinclined to accept the claim of the plaintiff that immediately on taking possession he had to carry out repairs though A1 stated that vehicle was in good condition. Those findings are based on evidence and cannot be found fault with.
7. As already noticed the payment of `50000/- is not in dispute and so also the payment to the financier. The plaintiff had also claimed that he had to go to the financing company on several occasions and he incurred expenses in that regard. He had produced Ext.A6 in support of his claim. The court below on a reasonable basis found that a sum of `1500/- may be granted on that count. The lower court found that there was nothing to show that there was any breach of contract on the part of the plaintiff and that the defendant had forcibly taken away the vehicle. There was no justification for the defendant to do so. It was on that basis the court below had
A.S No.257/1994 & 317/1994
: 5 :
granted a sum of `54650/- with 12% interest till the realisation from the plaintiff.
8. Learned counsel appearing for the appellant in A.S No.317/1994 complained that the lower court has failed in considering the counter claim and that has resulted in miscarriage of justice. The learned counsel relied on the decision reported in **Plantation Corporation of Kerala Ltd., v. Hussain(1998 KHC 475)** and pointed out that the court below was bound to consider the counter claim as a separate suit. That has not been done. Accordingly it is contended that the dismissal of the counter claim is unjustified.
9. One can have no quarrel with the position that a counter claim is in fact a separate suit and has to be treated as such. A reading of the judgment of the lower court shows that issue was raised in that regard and that was answered in paragraph 7 of the judgment. As already noticed seizure of the vehicle is not disputed. There was absolutely no evidence to show that the defendant was entitled to a sum of `29652.50/- as on the basis that the plaintiff has used the vehicle during the period from 1.11.1990 to 10.12.1990. The
A.S No.257/1994 & 317/1994
: 6 :
defendant was unable to substantiate his claim on the basis of any acceptable evidence. As regards the repairs claim to have been carried out by the defendant on the allegation that the vehicle had to be taken to the workshop due to the wanton use made by the plaintiff, there is also no acceptable evidence. Three bills were produced by the defendant as per Ext.B1, B2 and B3. One may recollect that the vehicle was seized on 10.12.1990. Ext.B2 is the earliest in point of time dated 21.12.1990. Ext.B3is dated 24.12.1990 and Ext.B1 dated 28.12.1990. It is evident that even going by the documents produced by the defendant that he had taken the vehicle first time to the workshop on 21.12.1990, that is 12 days after the vehicle was taken possession by the defendant. It cannot be said that if at all any repairs had to be done to the vehicle, it was due to the wanton use by the plaintiff. May be there is no elaborate consideration of the counter claims. It is fallacious to say that the counter claim has not been considered. The lower court has considered the counter claim independently. The learned counsel for appellant in A.S No.317/94 has unable to substantiate the counter claim.
The findings of the court below are based on
A.S No.257/1994 & 317/1994 : 7 :
appreciation of evidence and the findings cannot be said to be either unwarranted or perverse. The findings of facts are supported by evidence. No interference is called for with the judgment and decree of the court below. These appeals are without merits and are accordingly dismissed. Parties shall suffer their costs.
Sd/- **(P. BHAVADASAN, JUDGE)**
jma
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