TMI Blog1923 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... e seller had a right to enter upon the premises where the car was and inspect the car; that the purchaser was not to dispose of the car before the full price was paid; that the purchaser was to insure the car and assign the policy to the seller ; that in default of observance by the buyer of any of the conditions aforesaid the seller had the right to determine the contract and to seize and take possession of the car. 4. The word 'hire' is not used in the contract and it is not a hire purchase agreement. At the hearing I expressed the opinion that the contract was not executory and that under Section 78 of the Indian Contract Act property in the car passed when the car was delivered. The plaintiff was unfortunately not represented, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions cited was that the property in the car should not pass until full price had been paid. That is the construction put upon the contract in the pleadings and that intention prevails in spite of Section 78 of the Indian Contract Act. 6. In this view the only amendment necessary to the issues is to add the words or damages to issue No. 6. Mr. Rangnekar does not claim to call further evidence on this amended issue. 7. The plaint is so badly drafted that it was difficult to frame appropriate issues, The plaint claims damages for loss of earnings consequent on the defendant's refusal to return the car after it had been given for repairs on September 2, This is absurd as the defendant had a lien at least for his bill for repairs and all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence Act. The plaintiff has given no evidence of it. All he says is that defendant called it a new car but he was not deceived by this for he at once contradicted him and said it was not a new car. 10. I think, however, the contract of sale was subject to an implied warranty that the oar was serviceable, i. e., reasonably fit for the purpose for which it was bought. Mr. Rangnekar contends there is no such presumption where the buyer had an opportunity of inspecting the goods. The common law rule depended upon whether the buyer relied on his own judgment or the seller's Jones v. Just (1868) L.R. 3 Q.B. 197; but that distinction is not made in the Indian Contract Act. Pollock and Mulla suggest that the words have been ordered in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted another carburetter of the same make. This leaked, so the plaintiff took it back to the workshop on September 2 and defendant has now put in another type of carburetor . 12. The defendant admits the carburetter trouble but denies replacing the carburetter in August. He also denies that the engine had to be opened and decarbonised a fortnight after delivery to the plaintiff. 13. But the decarbonising of the engine was mentioned in plaintiff's letter of May 23. Defendant does not impute forgery but denies receipt of the letter. I do not believe his denial and I think that letter important corroboration of the plaintiff's evidence. Moreover the defendant has not called his workshop foreman to deny plaintiff's evidence as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at protruded a few days after the purchase. I think that defendant was conscious that he had sold a second-hand car and that is why he has made no charge for decarbonising the engine in April and May or replacing the carburetter in August. 19. Plaintiff says the car when sold was worth only Rs. 1500 but this is probably an exaggeration. Considering that the car was second-hand and not serviceable in the condition it was in when given to plaintiff, its value could scarcely have been more than half the invoice price, i.e., Rs. 2325. The present value of Rs. 4,000 on the installment system would be about Rs. 3926. Damages for breach of warranty would therefore be Rs. 1600. 20. I do not think that plaintiff is debarred from claiming this by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sallow Rs. 250 which plaintiff has paid for insurance ; also Rs. 294 4-0 covered by insurance, also Rs. 110 plus Rs. 45 for a hood and upholstery Defendant admits Rs. 110 is not chargeable as there was a separate oral agreement to supply a new hood. Plaintiff says this agreement extended to the upholstry also and I believe him. There is, therefore, due to the defendant a bill for repairs of Rs. 282. I, therefore, allow Rs. 282 plus Rs. 1125, i.e., Rs, 1407. 24. I, therefore, find the issues (1) in the negative; (2) in the affirmative ; (3) in the affirmative Rs. 1,600; (4) Rs. 450 ; (5) in the affirmative; (6) in the affirmative as to repairs to the extent of Rs. 282, and as to damages to the extent of Rs, 1,125. 25. There will, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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