Harilal, J.
The appellant is the plaintiff in O.S.No.243 of 1995 on the files of the Court of Subordinate Judge, Kozhikode. The above suit was filed for realisation of a sum of Rs.2,13,000/- with interest from the respondent/defendant. According to the plaintiff, the defendant sold and delivered his Matador goods vehicle having registration No.KL-11/7886 to the plaintiff, for a consideration of Rs.1,50,000/-, under Ext.A1 agreement executed between them, stipulating the terms and conditions of the sale. The entire sale consideration was paid on the date of Ext.A1 and a receipt thereof was issued to him. At A.S. No.1039 of 1998 -: 2 :- the time of sale, he was made to understand that even though the vehicle was hypothecated to the State Bank of India, along with factory premises, there was no charge on the vehicle and he undertook to lift the hypothecation before 30/4/1994. But, the defendant did not take steps to lift the hypothecation and because of this, the vehicle was not transferred to the name of the plaintiff; thereby the vehicle was kept idle for fairly a long period over two years, the vehicle became unfit for use and he sustained a loss of Rs.1,50,000/-. In the above circumstance, the plaintiff filed the above suit and prayed for a decree for realising Rs.2,13,000/- with interest.
2. The defendant denied the alleged transaction between the plaintiff and the defendant. According to him, he approached one Mr. Ramesh, who is a family friend, seeking financial aid and he had availed a loan of Rs.60,000/- from him for running his business. In this connection, the said Ramesh had obtained some blank cheques and blank signed stamp papers from A.S. No.1039 of 1998 -: 3 :- him and Ext.A1 is a concocted document, which was created in collusion with the said Ramesh, by using one of the signed blank stamp papers. According to him, he had repaid a sum of Rs.40,000/- and there was some difference of opinion between them as regards interest. When the relationship between the defendant and the said Ramesh was in friction, the said Ramesh colluded with the present plaintiff and stolen away the said vehicle from the custody of the defendant and private complaints filed against the plaintiff alleging the commission of theft are pending consideration. According to him, he is not liable to lift the hypothecation as the vehicle was not transferred to the plaintiff by the defendant. The documents produced by the plaintiff are concocted documents which were handed over to the said Ramesh as security for the loan of Rs.50,000/-. In the absence of the vehicle transaction between the plaintiff and the defendant, the suit is liable to be dismissed with cost.
3. On the above pleadings, both parties adduced A.S. No.1039 of 1998 -: 4 :- oral as well as documentary evidence and the court below framed five issues on the rival pleadings. After considering the evidence on record, the court below dismissed the suit.
4. Heard the learned counsel for the appellant and the learned counsel appearing for the respondent.
5. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the court below miserably failed to appreciate the evidence on record in its correct perspective. Per contra, the learned counsel for the respondent advanced arguments to justify the findings whereby the court below rejected the pleadings and the evidence adduced by the plaintiff.
6. It is the case of the plaintiff, in evidence, that the vehicle was transferred to him as security for the loan transaction with an assurance that hypothecation would be lifted before 30/4/1994; but the respondent did not take any steps to lift the hypothecation and consequently, the vehicle could not be transferred into A.S. No.1039 of 1998 -: 5 :- the name of the plaintiff, it was kept idle for a long period of two years and it became unfit for use. On the failure of the defendant to lift the hypothecation, to release the vehicle from the hire purchase agreement, enabling the plaintiff to effect transfer of the vehicle to his name, the defendant is liable to repay to the plaintiff the entire amount of Rs.2,13,000/- with interest. On the other hand, the defendant denied the alleged vehicle transaction with the plaintiff and contended that Ext.A1 agreement is a concocted document.
7. Though the court below had framed five issues and considered them separately, this Court finds that the prime and broad issue from which the plaintiff staked the claim in the suit centers around the nature of transaction effected under Ext.A1 agreement. According to the plaintiff, the transfer of the vehicle to him was allegedly effected in terms of Ext.A1 agreement. So, the question to be considered is, was the transfer of vehicle under Ext.A1 a sale falling A.S. No.1039 of 1998 -: 6 :- under the Sale of Goods Act?
8. The plaintiff has no case that he was blind or incapacitated to read or he could not read Ext.A1 agreement, before signing it due to any other reason. Paragraph-3 of Ext.1 agreement discloses that the defendant had sold and delivered the vehicle to the plaintiff with Exts.A5 Registration Certificate, A6 Fitness Certificate, A7 Insurance Certificate, A8 application for transfer of the vehicle duly filled up and signed by the defendant and A11 cash receipt evidencing the receipt of Rs.1,50,000/- as consideration of the sale of the vehicle by the defendant. In Ext.A18 letter sent by the plaintiff, in reply to Ext.A17 letter, to the State Bank of India with whom the vehicle was hypothecated shows that the plaintiff himself asserted and claimed that the said vehicle was sold to him by the defendant. In Ext.A16 letter sent to the Insurance Department also he admitted that the vehicle was sold to him and it is not a missing or theft as alleged by the defendant. A.S. No.1039 of 1998 -: 7 :-
9. Coming to the pleadings in the opening paragraph of the plaint itself, it is seen that the plaintiff himself admitted that the defendant himself was the owner of the Matador goods vehicle and he had sold and delivered the vehicle to him for a consideration of Rs.1,50,000/-. Thus, the averments in the plaint also disclose an absolute sale of the vehicle to the plaintiff.
10. Coming to the oral evidence of the plaintiff as P.W.1, he admitted that the vehicle was sold to him, though in the later part of the deposition he made an attempt to make out a case that the vehicle was transferred to him as security for the money lent by him. But, in the cross-examination, when he was confronted with the questions pertaining to the theft of the vehicle alleged by the defendant, he himself admitted that the vehicle was sold to him and he has not stolen it.
11. If the transfer of the vehicle was a security for the loan transaction, certainly, that fact would have A.S. No.1039 of 1998 -: 8 :- found a place in Ext.A1 agreement. Further, the plaintiff himself admitted that in case of necessity, the defendant was using the vehicle and he used to pay for the same. If it was a security, there was no need to pay for a permissive use of the vehicle by the defendant. More importantly, P.W.1 himself admitted that there was no condition in Ext.A1 agreement either for repayment of Rs.1,50,000/- or for return of the vehicle on the failure to lift the hypothecation in favour of the bank. In short, there was a transfer of ownership of the vehicle, when the price was paid and the necessary records pertaining to the vehicle were also handed over to the plaintiff at the time of sale. If the transfer of the vehicle was by way of an absolute sale, the plaintiff has no right to claim Rs.2,13,000/- as return of sale consideration with interest, on the failure to lift the hypothecation.
12. Though the plaintiff contended that the plaintiff was made to believe that there is no hypothecation and later he came to know the A.S. No.1039 of 1998 -: 9 :- hypothecation, Ext.A1 agreement itself discloses the hypothecation in favour of the State Bank of India. In paragraph-9 of Ext.A1, there is an indemnity clause promising indemnification by the defendant, in case of loss sustained, on the failure to lift the hypothecation. But, it is pertinent to note that the above clause gives rise to an inference that the plaintiff was duly informed of the hypothecation in favour of the bank at the time of sale itself. In the above analysis, it can be safely concluded that the plaintiff was well aware of the hypothecation. It follows that the plaintiff cannot be heard to say that the transfer of the vehicle was a security without disclosing the hypothecation.
13. It is true that, as referred above, there is an indemnity clause to indemnify the plaintiff in case of loss, on the failure of hypothecation. But, the plaintiff has neither pleaded such a case; nor quantified the loss sustained by him on the failure of the non-lifting of hypothecation. On the other hand, he had set up a case claiming return of sale consideration of A.S. No.1039 of 1998 -: 10 :- Rs.1,50,000/- with interest on a plea that the transfer of the vehicle was a security for the amount lent by him to the defendant, which lacks pleadings and evidence. Since the transfer of the vehicle constituted an absolute sale, as contemplated under the Sale of Goods Act, the court below is justified in rejecting the claim for return of sale consideration and dismissing the suit.
This appeal is devoid of merits and dismissed accordingly.
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(V. CHITAMBARESH, JUDGE) Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge