TMI Blog2001 (8) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment of a Commissioner for fixing price of 5 buses and their routes fully described in Schedule `B to the plaint and thereafter decree the suit for the amount so ascertained against defendant nos. 1 and 4 to 7. Further prayer was made for rendition of accounts in respect of profits derived by the aforesaid defendants from plying of the aforesaid vehicles from 17.8.1979 till the date of final decree and thereafter decree the suit for the said amount together with interest at the rate of 12% per annum. Case of the plaintiff is that he was running the business of stage carriage transport and owned 18 or 19 buses in the year 1970 and as there were talks of legislation imposing a ceiling on number of stage carriage permits owned by an individual in the year 1970, the plaintiff entered into an agreement with the Ist defendant on 11.12.1970 under Exhibit A-1 for sale of 5 buses covered by the route permits. Pursuant to the said agreement, a joint application was made by the plaintiff and the Ist defendant in April 1971 before the concerned Regional Transport Authority for transfer of permits of 5 buses which was rejected on 5.7.1971 on the ground that Tamil Nadu Ordinance No. VI of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff with the help of police. The plaintiff appeared in the said suit and also filed an application for injunction restraining the Ist defendant from alienating the buses and the route permits. On the said application for injunction, the Ist defendant gave an undertaking that he would not alienate the vehicles and the permits in favour of anybody which undertaking was duly recorded by the District Munsif. As the Ist defendant took forcible possession of the vehicles and did not pay the price, the same necessitated filing of the present suit. The Ist defendant filed a written statement contesting the claim of the plaintiff. According to him, he was the relative of the plaintiff and he and his father joined services of plaintiffs father in or about the year 1949 and he was treated more or less as a member of the family. There was no stipulation for payment of any salary and he was being paid money as and when required with a view to give him a good status in life. Keeping this in mind, the plaintiff, after death of his father, executed some sale deeds in favour of the Ist defendant in relation to certain lands and also sold five buses along with their permits to him under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit after recording findings, inter alia, that the documents, Exhibits A-1 and A-2, were genuine, the agreement, Exhibit A-1, was against public policy as the same was executed to circumvent the provisions of an enactment which was going to be passed fixing a ceiling of permits for an individual which was later promulgated as Tamil Nadu Ordinance No. VI of 1971 and defendant nos. 4 to 7 were bona fide purchasers for value without notice. Thereafter plaintiff preferred an appeal before the High Court in which on behalf of the defendants an application was filed to take on record the joint application dated 5.4.1971 filed by the plaintiff and defendant no. 1 before the Regional Transport Authority for transfer of the 5 buses along with their permits in favour of the Ist defendant by way of an additional evidence. The High Court, after rejecting the prayer for accepting the additional evidence, by the impugned judgment has allowed the appeal, set aside the judgment and decree passed by the trial court and decreed the suit in its entirety after recording findings, inter alia, that the document, Exhibit A-2, was genuine, the Ist defendant had taken forcible possession of the vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s down that if there is a contract for sale of a specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred, has no application. Section 31 of the Motor Vehicles Act, 1939 lays down that where the ownership of any motor vehicle registered under Motor Vehicles Act is transferred, the transferor and transferee both are required to report the fact of transfer to the Registering Authority so that particulars of transfer of ownership may be entered in the certificate of registration. The transfer is not effected under Section 31 of the Motor Vehicles Act, 1939, but the same simply prescribes procedure for entering the factum of transfer in the registration certificate, which is an act posterior to the transfer. The transfer of vehicles in question would be governed by the provisions of Section 19 of the Sale of Goods Act according to which property in the vehicle would pass to defendant no. 1 at such time as the parties to the contract intend it to be transferred. Thus the passing of property in the goods would be dependent upon the intention of the parties as evidenced from the contract. From th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vehicles Rules, and as such the agreement in question for sale of 5 permits at a price to be ascertained was unlawful within the meaning of Section 23 of the Indian Contract Act, 1872 and accordingly it would be void in view of the provisions of Section 24 of the Indian Contract Act, 1872. In the written statement filed by the Ist defendant as well as the other defendants it has been simply stated that sale of permit was illegal and opposed to public policy. In the pleadings there is no whisper that the plaintiff was carrying on business of sale of permits. No issue was framed on this question in the trial court and no evidence was led by the defendants. The only question that was raised was that the agreement to sell permits was illegal as the plaintiff wanted to circumvent the provisions of law which were likely to be introduced soon fixing a ceiling of permit on individual. This question was raised for the first time before the High Court, which has recorded a finding, as stated above, that the agreement was not invalid. The question whether the plaintiff was trafficking in permits is not a pure question of law, but is a mixed question of fact and law both and for deciding the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract. Defendant nos. 4 to 7 had notice of the contract between the plaintiff and the Ist defendant and they were not bona fide purchasers, therefore, in view of the provisions referred to above, we are of the view that the High Court was quite justified in passing a decree against them as well. Shri Chandra then submitted that the High Court was not justified in rejecting the prayer for additional evidence. The document sought to be brought on record by additional evidence, was the joint application filed on behalf of the plaintiff and the Ist defendant before the Regional Transport Authority. High Court has refused the prayer on the ground that the said document was not put to the plaintiff when he was deposing as a witness in the suit. Further ground for refusal of the prayer by the High Court was that the copy produced was not a certified copy as there was neither any seal of the court nor certificate of endorsement and on the face of the document it was copy of a true copy issued by the Regional Transport Officer. Shri Chandra could not point out any infirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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