Specific relief or declaration?
Deepak Nair
(Querist) 26 May 2012
This query is : Resolved
Dear learned experts, please advise me on the following issue.
A garrage repaired a vehicle and a bill/invoice was issued to the owner of the vehicle. The owner accepted the invoice and promised to pay the amount. But, even after repeated follow-ups, the owner has failed to pay the amount and collect his vehicle. The vehicle is lying in the garage for more than 14 months and there is no response from the owner. Apart from the total bill amount, parking charges for the vehicle too have escalated above Rs.1 Lac. The garage is run on a rented premise and the said vehicle causes a lot of hindrance to the smooth functioning. In this issue,
1. What is the remedy available for the garage against the vehicle owner?
2. What can be done to recover the money?
3. can the garage file a suit for declaration so as to transfer the title of the vehicle and sell the same to recover the money?
4. Is there any remedy under the Specific Relief Act?
Kindly advise.
Guest
(Expert) 26 May 2012
Dear Deepak,
My views to sort out the problem are as under:
(1) & (2) Send a notice to the vehicle owner to pay the amount pertaining to invoice along with the specific amount of interest by some fixed date failing which the garage would be free to sell/auction the vehicle to recover the amount out of the sale proceeds;
(3) After expiry of notice period the garage may file a suit declaration to seek transfer of title of vehicle and to sell the vehicle to recover the amount;
(4) Since a party (vehicle owner) to the Contract is evading in performing his part of the contract, thereby seriously prejudicing the other contracting party (garage), the said other contracting party (garage), by virtue of Sections 10, 12, 14(3), 19, 21, 22, 23, 42 and subject to Sections 14, 16, 17, 18, 20, 24, may file a Suit for Specific performance by making Transport Authority of registration also as a party, along with the vehicle owner --
(a) to cause the said defaulting party to perform his part of the contract; and
(b) may also seek damages in addition to Specific performance; or
(c) may seek damages in lieu of Specific performance; and
(d) can also seek additional damages for breach of Contract.
Deepak Nair
(Querist) 26 May 2012
Dear Dhingra Sir,
Thanks a lot for yout detailed and prompt answer.
In this a notice was issued on 2 occassions, but no response. Now, as per your advise, i will send a final notice on behalf of the garrage.
Thanks a lot once again for solving this query.
Guest
(Expert) 26 May 2012
You are welcome Deepak.
Adv.R.P.Chugh
(Expert) 26 May 2012
Ld.Deepak,
I am in respectful disagreement with Dhingra Sa'b on this.
In my humble opinion - This is a contract of bailment - the garage is merely the bailee of the truck, and entitled to receive the normal remuneration + any other expenses contingent on taking care of the goods. (in this regard please have a look at S.158 of the Indian Contract Act).
The Garage owner is entitled to exercise particular lien over the truck until payment of remuneration + parking charges + any other charges necessarily incurred from the owner.
For this necessary civil suit (summary civil suit since liability is documented) for recovery would have to be filed - in execution of which his assets may be attached (which may include the truck) and be sold. If he can be found he can face civil prison.
But we cannot by ourselves sell or get transferred to us.
I have reservations about the Specific Performance that Dhingra Sir talked about, for the simple reason :-
i) No contract for sale of that particular truck was ever entered into - hence no question of specific performance - the contract was to do services on that truck which has been done for default of payment - action for breach of contract + suit for recovery is the appropriate remedy.
ii) Even if we believe for the sake of argument that SP is maintainable - then also since money compensation is adequate relief - specific performance would never be ordered.
I would hence strongly advise you to serve notices - file summary suit - get your lawful due in execution.
I hope this helps !
Deepak Nair
(Querist) 26 May 2012
Thanks a lot Bharat. Your answers are always supported with sufficient reasoning.
Deepak Nair
(Querist) 26 May 2012
Dhingra Sir,
Kindly give your views on Mr. Bharat's response. Would it be fine if I go for a summary suit after serving the notice.
Guest
(Expert) 26 May 2012
Dear Deepak,
Thanks for re-referring your query with particular reference to Shri Bharat's answer.
I hope you can yourself realise what is what and what that should be if you check the answers with reference to the nature of your question. I won't make any comment, except that your query is about recovery of repair/service charges of the vehicle while Mr. Bharat's reply is about parking charges/ rent specifically as a parking arrangement of truck and custody of goods of the truck assigned by the truck owner to the garage owner, as of a regular contract.
However, you are free to act upon any one's advice, which you may feel to be correct or suit you the best.
Nadeem Qureshi
(Expert) 26 May 2012
Dear Mr. Deepak
according to me first of all send a legal demand notice after expiry of the notice period you can file a recovery suit and get interim order for sale the Vehicle u/o 39 rule 6 of CPC and get money.
Adv.R.P.Chugh
(Expert) 26 May 2012
In any case Ld. Dhingra Sir - even if the contract is of repair - and not parking - then also specific performance as a remedy is a non sequitur (does not follow) the reasoning that I've given above stands.
Deepak's client is and would remain a bailee and cannot seek to sell/auction or in any manner exercise proprietary rights over the truck.
Specific Performance is between parties who contracted - the contract was for repair of the truck - and by extension taking care of the same - for an agreed remuneration - If party took services and did not pay remuneration - then in absence of contract to the contrary - I fail to understand - how one can seek to make the defaulter sell the truck - when he did not contract to ???? He contracted to pay - and if he does not pay - he is in breach for which a suit for recovery is the appropriate infact the only remedy.
There is neither any Cause of Action for Specific Performance nor for Declaration. A Declaration is always sought with respect to any right to property or legal character. You have no right to property in this case - but just to get recovered the repair/parking + incidental charges.
I would love to see what other experts have to say on this !
Deepak Nair
(Querist) 26 May 2012
Yes Bharat,
I too would like to see what other learned experts have to say to this issue.
Let's wait for the same.
Guest
(Expert) 26 May 2012
Dear Bharat,
Opinions can differ. My opinion was as per the 4 questions posed by Mr. Deepak Nair. Like you, other experts may also have their own opinions, may be different from mine or yours or even from both of us.
However, right or wrong is decided by the judge of the case depending upon the effectiveness of presentation made by the advocate.
Adv.R.P.Chugh
(Expert) 26 May 2012
Certainly Sir. But this discussion was enriching.
Deepak Nair
(Querist) 26 May 2012
Definitely Bharat. Helped me a lot.
Thanks to all the learned experts.
