R. Bhaskaran, J.
A.S. No. 809 of 1997
1. This appeal is filed by the defendant in O.S. No. 27 of 1994 on the file of the Subordinate Judge's Court, Tirur. The suit was filed for realisation of Rs. 4,25,622.55 with interest at 15% per annum. According to the plaintiff, the defendant was the driver of the plaintiff. He got employment at Jiddah. His services were terminated in 1986. While returning to India, he had purchased a foreign car for the plaintiff. 10,000 Riyals was paid by the plaintiff through his son-in-law, who was working there. After the car was brought to India, the delivery was delayed on account of customs clearance problems. The plaintiffs spent an amount of Rs. 13,000/- for demurrage charges. Rs. 1,82,227.55 was paid as customs duty. Various other amounts had also to be incurred for getting clearance of the car including warehouse charges, battery service charges, charges for registration number etc. The plaintiff spent a total amount of Rs. 3,18,223.55 for the car. The defendant intimated the plaintiff that he had paid 530 Riyals at the time of purchase of the vehicle. The balance amount due to the defendant was also paid by the plaintiff. In the meanwhile, a complaint was received in the Regional Transport Office. According to the plaintiff, it was manipulated by the defendant to take the vehicle from the custody of the plaintiff. On the request of the defendant, it was given to him for producing before the R.T.A. The defendant also agreed to transfer the vehicle in the name of .the plaintiff after the 'no sale' period was over failing which he undertook to pay the plaintiff the amount of damages. The defendant however applied for duplicate R.C. Book. Knowing about it, the plaintiff filed objections. The defendant did not return the vehicle to the plaintiff and he transferred the vehicle in the name of another person within the 'no sale' period. Hence the suit was filed for realisation of Rs. 4,25,662.55 with interest at 15% per annum.
2. The defendant in the written statement admitted the purchase of the car and payment of 10,000 Riyals by the son-in-law of the plaintiff. According to him, he had spent huge amounts for the purchase of the car and the plaintiff did not mention the amount spent by him in the plaint. It was the defendant who spent all the amounts in connection with the delivery of the vehicle. All other allegations in the plaint regarding payment of the amount by the plaintiff were denied in the written statement. The defendant due to want of money sold the vehicle after the 'no sale' period. According to him, 'no sale' period was more than 5 years and the bank guarantee given to the Government was forfeited and the bank instituted O.S. No. 8 of 1991 for realisation of the amount. Since the defendant was working as driver of the plaintiff, he had permitted the plaintiff to use the vehicle for some time and at that time the plaintiff took R.C. Book and other relevant documents from the car and the same was not returned when requested by the defendant. Therefore, he applied for duplicate R.C. Book and sold the car.
3. The trial court raised the following issues
i) Whether the plaintiff is entitled to the amount claimed in the plaint,
ii) Reliefs and costs.
4. On behalf of the plaintiff, Exts. Al to A44 were marked and Pws. 1 to 5 were examined. On the side of the defendant. Exts. B1 to B18 were marked and defendant was examined as Dw.l. After trial, the trial court found that the case set up by the plaintiff was true and that the defendant was liable to pay the amount incurred by the plaintiff to the plaintiff. Though a plea of limitation was not specifically raised and no issue framed, that question also was considered by the trial court and it was found against.
5. In this appeal, the main points raised are (1) that the contention of the plaintiff that he spent the entire amount for import of the car was not proved, (2) that such an agreement was unenforceable in law under Section 23 of the Contract Act, and (3) that the suit itself was barred by limitation as the plaintiff filed the suit three years after the amount were alleged to have been paid by the plaintiff.
Point No. 1
6. The learned Counsel for the appellant contended that all the documents produced in the case are in the name of the defendant and therefore the plaintiff was not entitled to contend that it was he who spent for such payments. It can be seen .from the documents produced in the case that though all the documents were produced by the plaintiff since the registration of the car was in the name of the defendant documents could also be only in his name. But the fact remains that it was the plaintiff who spent those amounts from his pocket as otherwise there was no possibility of his coming into custody of those documents. The contention of the defendant that for some time the vehicle was with the plaintiff as the defendant was earlier the driver of the plaintiff and he had allowed the plaintiff to use the car and at that time the plaintiff took away all the papers from the car cannot be believed. There was no necessity for the defendant to keep all the documents in connection with the purchase and import of the car in the car itself. PW.1 was the Joint Regional Transport Officer, Malappuram. He was examined to prove that the defendant had applied for duplicate R.C. of the car. Ext.X-1 series were got produced to show that the defendant had applied for duplicate R.C. and that the plaintiff filed objections. But duplicate R.C. was given to the defendant. Exts.X-1 to X-19 were proved by Pw.2 the Manager of the Vijaya Bank. The Bank had given guarantee for which the fixed deposit receipts in the name of the plaintiffs wife were given to the Bank. He has also given evidence to the effect that the plaintiff's wife had account in the Bank and on her application loan was given to her. On her application, Bank guarantee was given on behalf of the defendant. He has also deposed that the plaintiff had withdrawn an amount of Rs. 1,50,000/- as per Ext.X-16 through the defendant. Ext.X-17 is the copy of S.B. account book of the plaintiff. In cross-examination, he has stated that a gold loan was taken by the defendant and the Bank had filed a suit against the defendant for realisation of the loan amount. But he has also stated that the amount covered by the fixed deposit receipts were adjusted for the loan amount. Exts.A1 to A12 are the documents produced by the plaintiff to show that it was he who spent the amount for getting the car cleared from the Customs Department and the amount of 10,000 Riyals given by the son-in-law of the plaintiff was not disputed by the defendant. Therefore, the contention of the defendant that the car was purchased by his own earnings was not believed by the trial court and nothing has been brought to our notice to hold that the oral and documentary evidence produced by the plaintiff to substantiate his contention that the car was purchased with his money and brought to India at his expense was not true. Therefore, we find against the first point raised by the learned Counsel for the appellant.
Point No. 2
7. The learned Counsel for the appellant contended that the agreement itself is invalid in view of Section 23 of the Contract Act and the same was unenforceable in law. According to the learned counsel, the car brought to India was a new car and only persons who own a car for their personal use can bring that car to India whenever returning to India and since the plaintiff and defendant were parties to the violation of the Foreign Exchange Rules, the plaintiff was not entitled to enforce the agreement. There is no merit in this contention since as the trial court has noticed, the only condition for importing the car was that it should not be sold within two years of such import. It was known as 'no sale' period. After the no sale period the defendant could sell the car to anybody. In this case, the plaintiff therefore waited till the expiry of the period. We do not find any such contention raised before the trial court. Though a ground is raised in the memorandum of appeal that the defendant was bringing a new foreign car, we do not find any such contention raised in the pleadings in the trial court and in the absence of necessary materials, it may not be proper for the first appellate court to consider such point for the first time in appeal as it is a mixed question of fact and law. What exactly was the violation of the law in the agreement between the parties and how it was unenforceable in law were all matters which had to be pleaded and proved by the defendant if he wanted to show that the amount spent by the plaintiff for the purpose of the car was not realisable by him from the defendant when it is proved that the defendant did not repay the amount spent by the plaintiff and has sold the car to third party after getting the benefit of the entire amount spent by the plaintiff. Therefore, this point is also found against the appellant.
Point No. 3
8. The learned Counsel for the appellant vehemently argued that at any rate the suit is barred by limitation. According to the learned counsel, the entire amounts were spent by the plaintiff prior to 30-3-1987 and the period of limitation is only three years and it expired on 30-3-1990. The suit was filed only on 19-6-1991 and since it was filed beyond three years the suit was liable to be dismissed. As already noticed, though such specific contention was not raised in the written statement, the trial court has considered this aspect and found that the plaintiff was entitled to wait till the no sale period was over and it expired only on 20-3-1989. The suit was filed on 19-6-1991. According to the learned Counsel for the appellant in Ext. A31 which is a statement filed by the plaintiff before the A.R.A., Malappuram, in connection with the clearance of the car, the plaintiff had detailed the amounts spent by him and it showed that the plaintiff was prepared to give the vehicle in case he was paid the entire amount spent by him. Therefore the claim was only for the amount spent by the plaintiff and Ext.A31 is dated 25.11.1987. According to the learned>counsel for the appellant, the plaintiff was not entitled for more than three years from the date of spending of the amount for the release of the car from the customs as well as for bringing the car to India. The trial court found that since the plaintiff was entitled to wait till the no sale period was over and in case he was given the car after the no sale period was over, there was no necessity for him to file the suit at all. According to the learned Counsel for the appellant, the suit is for realisation of money and the plaintiff was bound to file the suit within time. The learned Counsel for the appellants also relied on the decision of this Court in State of Kerala v. Thalayar Tea Company Ltd. 1982 KLT 404. Whether Article 24 or Article 113 was the relevant Article was the question for decision in that case. The facts of the case are that the plaintiffs had sought for refund of the amount collected as seigniorage. Earlier, there was a suit filed as O.S. No. 70 of 1966 challenging the collection of seigniorage. Though the trial court dismissed the suit, this Court in appeal decreed the suit. Thereafter, O.S. No. 83 of 1973 was filed for realisation of the amounts already collected by the Government towards seigniorage, sales-tax and interest. Therefore the question arose as to which was the starting point of limitation - whether it was three years when the money was received orthree years after the right aecrued. The two Judges of the Division Bench had difference of opinion and the matter was referred to a third Judge. His Lordship Justice P. Subrarnonian Poti, Acting Chief Justice, as His Lordship then was, opined that the period of limitation started from the date when the money was received and it was further held that when specific Article was applicable, the residuary Article of the Limitation Act has no application. In this case, we do not think that that judgment will help the learned Counsel for the appellant. This is not a mere suit for money received by the defendant from the plaintiff. The suit is filed for all the amounts spent by the plaintiff for the purchase of the car as well as for getting clearance from the Customs Department and for other incidental matters. The entire amount was not received by the defendant from the plaintiff. Therefore, Article 24 of the Limitation Act has no application. If Article 24 has no application, it is not in dispute that Article 113 will apply in which case the suit was filed within time as according to the plaintiff, the cause of action arose in the suit when the defendant refused to transfer the car in favour of the plaintiff after the no sale period was over.
9. In Thalayar Tea Company's case, the learned Judge relied on the decision of the Supreme Court reported in Venkata Subbarao v. State of A.P. : [1965]2SCR577 . That decision itself made it clear that if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently Article 62 (Present Article 24) does not apply. Under Article 113 the starting point of the period of limitation is when the right to sue accrues. On the facts of this case, it is clear that the plaintiff wanted the car to be purchased after the no sale period was over. It is only when he found that the car would not be sold to him that his right to sue accrued and the suit is filed within three years as per the dates given earlier in this judgment. We are inclined to hold that the suit is not barred by limitation also for the reason that no such Contention was raised and no issue was tried. The question of limitation is a question of law only if it arises out of admitted facts. If on the averments in the plaint the suit is not barred by limitation, the defendant will have to deny the averments and plead that the suit is barred by limitation. In the absence of such contentions, the averments in the plaint regarding cause of action will have to be accepted. In that view of the matter also, we are of opinion that the suit is not barred by limitation. Admittedly, the imported car could not be sold to the plaintiff within the no sale period and without selling the car to the plaintiff, the defendant has sold the car to a third party and obtained money from the third party. When the documents produced proved that the plaintiff has spent the entire amount and the defendant has received the consideration by sale of the car to a third person, we do not find any reason to interfere with the judgment of the court below. The plaintiff is entitled to get the amount from the defendant. The appeal is liable to be dismissed.
10. This appeal is filed by the defendant in O.S. No. 114 of 1994 on the file of the Subordinate Judge's Court, Tirur. The suit was for realisation of Rs. 38,3197- from the appellant with interest at 19.5% per annum.
SA.No. 845 of 1998
11. The plaintiff was a guarantor to the defendant for obtaining a bank guarantee of Rs. 58,500/- from Vijaya Bank, Manjeri. The bank guarantee was required for getting a clearance certificate for a foreign car brought to India by the defendant. The plaintiff had deposited fixed deposit receipts for Rs. 15,0007- with the Bank as guarantee. She also mortgaged her immovable property for Rs. 58,500/-. For violating the terms of import the Bank guarantee was forfeited. The bank encashed the fixed deposit receipts of the plaintiff which was given as security. The maturity value of the fixed deposit receipts was Rs. 28,764/-. The suit was filed to get the amount with interest as well as other amounts spent by the plaintiff in connection with the guarantee given to the defendant from the defendant. She also claimed the expenses incurred by her for defending O.S. No. 8 of 1991 a suit filed by the Bank against the defendant whereas the plaintiff was also made a party.
12. The defendant denied the liability though the transaction was not disputed. According to him, he had paid the value of the fixed deposit to the plaintiff when she had handed over the fixed deposit receipts to the Bank. He also contended that he had discharged the entire amount due to the Bank. After framing of necessary issues, the trial court granted a decree for Rs. 22,537/- with interest at 12% from 30-3-1990 till realisation.
13. In this appeal, the learned Counsel for the appellant repeated the contention of the defendant in the trial court. The point for consideration is whether the decree of the trial court requires any modification.
14. Though the suit was filed for realisation of Rs. 38,319/- with interest at 19.5%, the trial court has not granted the entire amount as claimed. Only the value of the fixed deposit receipts on maturity was directed to be repaid by the defendant. In fact there is no dispute before us that the plaintiff had handed over the fixed deposit receipts to the Bank to enable the Bank to give guarantee to the Government on behalf of the defendant. The contention that the defendant had paid the amount covered by the fixed deposit receipts to the plaintiff is not proved by any evidence whatsoever. Since there is no cross-objection by the plaintiff for the amount disallowed by the trial court, there is no necessity to consider that aspect in this appeal. Exts.X-1 to X-13 show that the plaintiff had deposited the fixed deposit receipts and created equitable mortgage of immovable properties in favour of the bank. The interest awarded is also reasonable having regard to the facts of the case and no separate argument was advanced with regard to the rate of interest. This appeal is also liable to be dismissed.
In the result, both the appeals are dismissed.