The Motor & General Finance Ltd. vs Milap Bus Service And Anr.
1996 Latest Caselaw 545 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) This Order will dispose the application filed by Shri Gian Singh, respondent No. 2 under Section 151 CPC. The facts relevant for the disposal of the above mentioned application briefly stated are that M/s Motor & General Finance Limited, a Company incorporated under the Companies Act filed a petition under Section 20 of the Arbitration Act, 1940 alleging that by a Hire Purchase Agreement dated the 30th June, 1982 the petitioner Company gave on hire to respondent No. 1 a motor vehicle, bearing registration No. Put 7686 on terms & conditions mentioned in the said agreement and respondent No. 2 guaranteed the due performance of the said agreement by respondent No. 1. It is alleged that the said agreement contained an arbitration clause (Clause VI). It is further alleged that in terms of the said agreement respondent No. 1 agreed to pay a sum of Rs. l,19,680.00 in 24 hire instalments as provided in Schedule B of the said agreement. It is further alleged that respondent No. I has only paid a sum of Rs. 43,000.00 towards hire money and failed and neglected to pay the balance amount. It is further stated in the petition that the disputes have arisen between the parties which are referable to the named Arbitrator in accordance with the arbitration agreement. It has been prayed that the Hire Purchase Agreement dated 30.6.82, containing the arbitration clause, be ordered to be filed in the Court and the disputes/differences between the parties in terms of the arbitration clause be referred to the named Arbitrator Shri Inderjit Gulati, Advocate.

(2) The claim of the petitioner Company has been resisted by the respondents who have filed written statement raising certain preliminary objections inter alia stating that the respondents did not execute the agreements and that they were made to sign certain blank documents and that the petitioners are making the use of the said blank documents just to cheat the respondents. On merits it is stated that the respondents being the owner of vehicle No. Put 7686 only took loan from the petitioners without incurring any liability on the said vehicle. The petitioner Company filed a replication controverting the pleas taken in the written statement and reiterating the averments made in the petition.

(3) On the pleadings of the parties the following issues were framed on 3.3.86: 1. Whether the petition has been filed by a duly authorised person ? (OPP) 2. Whether the arbitration agreement contained in Clause Vi of the agreement dated June 30, 1982 is vague and unenforceable ?(OPR) 3. Whether the agreements were signed in blank ? (OPR) 4. Whether the disputes or any part of the disputes raised by the petitioner in the petition are beyond the scope of the reference ? (OPR) 5. Relief.

(4) After the framing of the issues the parties have adduced evidence by filing affidavits. Respondent No. 2 Shri Gian Singh vide above mentioned application has prayed that the petitioner be directed to produce the deponents who have filed the affidavits by way of evidence in support of the case of the petitioner Company in the witness box so as to enable the respondent to cross-examine them. The petitioner Company has filed a reply to the above mentioned application opposing the above prayer made by respondent No. 2.

(5) I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. The main plank of the case of the petitioner is the Hire Purchase Agreement dated the 30th June, 1982 purported to have been signed by the parties. The stand of the respondents, taken by them in the written statement, is that the respondents have not executed the agreement and that they were made to sign blank documents. The petitioner Company has adduced the evidence of Shri A.K. Ahluwalia, General Attorney of the petitioner Company and Shri Indernath, Accounts Assistant/Transaction Incharge of the petitioner Company in support of its case. As per settled law the ordinary rule is that a decision on facts must be decided on evidence recorded viva voce in Court as provided by Order 18, Rule 4 CPC. The above procedure may be dispensed with where either party agrees to a decision on affidavits or in the absence , of such an agreement the Court makes an order under Order 19, Rule 1 that any particular fact or facts may be proved by affidavit. In the later case. Rule 4 of Order 18 Civil Procedure Code need not be followed subject however to the right of the opposite party to have the deponent produced for cross-examination (Gian Chand v. Teerath Ram Gupta, . Jayanti Lal Mohan Lal v. Narun Das & Sons, ; and Smt. Anjali v. Milan Kumar, .

(6) In the instant case, as already stated, the case of the petitioner mainly rests on the Hire Purchase Agreement dated 30th June, 1982. Neither in the affidavit of Shri A.K. Ahluwalia, General Attorney of the petitioner Company nor in the affidavit of Shri Indernath, Accounts Assistant/Transition Incharge of the petitioner Company there is any mention as to who signed the said agreement on behalf of respondent No. 1. In the affidavit of Shri A.K. Ahluwalia it is simply mentioned that the Hire Purchase Agreement was duly executed by the respondents in his presence whereas in the affidavit of Shri Indernath it has been stated that the Manager of M/s. Milap Bus Service (respondent No. 1) signed the agreement. No name of the person and other details as to who signed on behalf of respondent No. I have been given in either of the two affidavits. Shri Indernath in his affidavit states that he alongwith Shri R.D. Jain signed the above said document (Hire Purchase Agreement) as witnesses whereas on a perusal of the original agreement on record it is apparent that the said agreement is purported to have been executed in the presence of three witnesses. The contention of the respondents is that the respondents were made to sign blank documents. This fact has not been specifically denied in any of the affidavits filed by way of evidence on behalf of the petitioner Company. In the presence of the above facts, in my opinion, the prayer made by respondent No. 2 vide above mentioned application appears/to be genuine and consequently in the interest of justice the same is allowed. No order as to costs. Petitioner to produce both the deponents, namely Shri A.K. Ahluwalia and Shri Indernath for purposes of cross-examination before this Court on the next date of hearing i.e. on 7th October, 1996. Nothing stated herein a above shall amount to expression of any opinion on the merits of the case pending before this Court.

THE application stands disposed of in above terms.