E S. Varma, J. - (1.) THIS is a plaintiff's appeal arising out of a suit filed by him against M/s. Rohtas Financiers and Sri Lal Chand Rastogi, Partner Rohtas Financiers, Hire purchase Financiers of Automobiles, Hazratgani. Lucknow. The prayer in the suit was that a decree for damages for sum of Rs. 46,250/-be passed against the defendants, for breach of contract. In the first intsance an application for forma pauperis was filed. The said application was allowed and registested as Regular Suit No. 85 of 1967. The learned Additional Civil Judge by judgment and decree dated 5-12-1968 dismissed the plaintiff's suit. The appellant then filed an application for leave to appeal in forma pauperism. The prayer was granted by this court and the application for leave to appeal was converted into First Civil Appeal No. 17 of 1971.
(2.) THE case of the plaintiff as disclosed in the plaint is that he had been doing truck business and on 14-1-1963 he entered into an agreement with defendants 1 and 2 to purchase Vehicle No. U. P. L. 4108 on hire purchase system. A sum of Rs. 101/- was paid by the plaintiff to defendants as advance money. It was further stipulated that Rs. 4000/- was to be paid as initial payment and the rest of the amount, namely, Rs 15,000/- would be realised by the defendants from the plaintiff in twenty four equal instalments. THE agreement of hire purchase was to be filled in by the parties simultaneously with the delivery of vehicle and the initial amount of Rs. 4000/- was to be paid by the plaintiff to the defendants. THE plaintiff was also required to furnish guarantors to be approved by the defendants. On 14-1-1983, it is stated by the plaintiff in the plaint that the defendants informed him that the said vehicle needed repairs and recolouring and the said vehicle would be delivered to the plaintiff within a month from that date. When the plaintiff approached the defendants for delivery of vehicle the defendants informed him that the vehicle was not ready for delivery and it shall be delivered just after 'Holi' festival. It is also asserted that an 13-3-1963 when the plaintiff again approached the defendants he 'handed over' the balance of the initial money but the defendants again informed the plaintiff that the vehicle is not ready for delivery. THE same reply was given by the defendants when the plaintiff approached the defendants on 20-3-1963. On 23-3-1963 the plaintiff sent a registered acknowledgement due notice to defendants 1 and 2, requiring them to pay Rs.2000/- as damages upto 23-3-1963 and also a further sum of Rs. 50/-per day with effect from 23-3-63 till the delivery of the truck. THE defendants admit that the said notice was received by both the defendants on 26-3-1963. It has also been stated in the plaint that on 24-8-1965 the plaintiff again sent a notice to the defendants requiring them to pay damages to the tune of Rs. 46,250/-. According to the plaintiff the notice dated 24-8-1965 was received by defendant no. 1 on 25-8-1965 and the plaintiff in order to maintain his family had to purchase another vehicle and due to shortage of funds was able to ply the vehicle only in December, 1963 after he had arranged funds. THE plaintiff's case is that non-delivery of Vehicle No. U.P.L. 4108 put the plaintiff to great loss and he had to take help of his friends for meeting the daily needs. THE plaintiff also states that the purchase of other truck did not yield any profit and be suffered great loss in business. In paragraph 17 of the plaint the plaintiff has claimed Rs. 46,250/- as damages on account of nondelivery of truck U. P. L. No. 4108. In para 19 it has been stated that the defendants had disposed of Truck U. P. L. No. 4108 on profits. According to the plaint cause of action accrued to the plaintiff on 14-1-1963, 25-3-1963 and 25-8-1965. In this way the plaintiff claims a decree for Rs. 46,250/- and since he was unable to pay the court fee, he applied for leave to appeal in forma pauperism. THE plaintiff was permitted to appeal as a pauper. The suit was contested by the defendants and they filed a written statement. The defendant's case is that on 14-1-1963 the plaintiff came to the defendants for finance and for entering into hire purchase agreement. The plaintiff was told that the truck in question was in the workshop and for that transaction the terms of hire purchase were communicated to the plaintiff and a printed copy of an agreement and form was given to him to be tilled in and executed by him alongwith a guarantor. The plaintiff was asked to deposit a sum of RS. 101 towards documentation and other incidental charges according to the practice prevalent in the defendant's firm. The plaintiff deposited this amount with the defendants. The plaintiff was further asked to furnish a guarantor and execute the documents in connection with hire purchase and further to deposit the initial money. The defendant's case is that after that the plaintiff never turned up to execute the documents and to make initial deposit. This was in spite of letter issued to the plaintiff. According to the defendants there was no completed contract inasmuch as guarantor was not produced and necessary documents were never executed. According to the defendants the execution of documents was a condition precedent. In paragraph 29 of the written statement defendants denied that the plaintiff ever approached the defendants to make initial deposit and when the plaintiff did not turn up the defendants entered into a hire purchase agreement with M/s. Brij Kishore Ganga Prasad with respect to the said truck. The defendant also contended that even if it was held that there was a completed contract the plaintiff committed breach in complying with the terms of the conditions there of It is further contended by the defendants that the plaintiff could not arrange for the initial deposit and the guarantor to enable him to enter into the hire purchase agreement and execute the documents in connection therewith. On these facts the defendants case is that the plaintiff is not entitled to any damages and the plaintiff's suit is liable to be dismissed. On the above pleadings the following issues were framed :- "1. Whether there was a contract entered into between the parties as alleged in para 1 of the plaint ? 2. Whether the defendants committed breach of contract entered into the agreement as alleged in para 19 of the plaint ? 3. Whether the plaintiff committed breach of contract as alleged in para 31 of the written statement ? 4.Whether the plaintiff is entitled to the damages ? If so, whether the damages claimed are excessive, if so, to what amount of damages is the plaintiff entitled ? 5.To what relief, if any, is the plaintiff entitled ? 6.Whether there was an agreement as alleged in amended para 1 of the plaint with respect to the price of the vehicle ? If so, its effect ? A perusal of the pleadings of the parties, the statement of the witnesses and the judgment rendered by the trial court indicates that the so called agreement set up by the plaintiff was oral. The trial court on issues 1 and 6 recorded a hading that there was a contract between the parties as alleged in paragraph 1 of the plaint. The finding on issues 2 and 3 recorded by the trial court was that breach of contract was not from the side of the defendants but was from the side of the plaintiff and hence the claim for damages was not entertainable. On these findings the trial court dismissed the suit.
(3.) IN this appeal we have heard learned counsel for the parties at great length. It was contended by Mr. L. R. Acharya. learned counsel for the appellant that the court below recorded a finding that there was a contract between the patties such as is alleged in the plaint. He contended that the breach of contract was occasioned by the conduct of the defendants and not the plaintiff. He accordingly pressed that the claim for damages should have been decreed by the trial court. On the other hand Mr. R. K. Srivastava, learned counsel for the respondents contended that since there was no completed contract the terms of which had to be reduced in the form of hire purchase agreement the plaintiff is not entitled to any damages. The learned counsel elaborates his submission by saying that the agreement referred to in the plaint was not enforceable as the terms thereof were condition precedent before the transaction could go through. Since there was no completed contract between the parties the claim for damages is not maintainable. In view of the fact that the terms of the agreement set up in the plaint are said to have been agreed to orally between the parties, it would be necessary to examine the pleadings of the parties and their submissions in order to ascertain the correct terms on which the transaction had to be entered into between the parties. PW 1 Bishun Shanker, plaintiff clearly states in his plaint that the agreement between the parties was for the purchase of vehicle on hire purchase system. The plaint also indicates that the agreement of hire purchase had to be filled in by the parties, preceded by the payment of initial amount of Rs. 4000. In his statement the plaintiff has stated in examination-in-chief that it was agreed that he would get the truck on hire purchase system. The form of bire purchase agreement filed in this case indicates that one of the conditions for entering into hire purchase agreement was furnishing of guarantor by the plaintiff. In paragraph 33 of. the written statement it has been specifically submitted by the defendants that the plaintiff could not arrange for the initial deposit and the guarantor to enable him to enter into hire purchase agreement and execute the documents In connection therewith. In the additional written statement it was pleaded that there was no completed agreement with respect to the price nor agreement of hire purchase was filled and no names of guarantors were furnished by the plaintiff. DW 1 Lal Chand in his statement has stated that in order to effectuate the agreement of hire purchase the form bad to be filled in and the hirer was required to furnish a guarantor.;