Motor & General Finance Ltd. vs P.M. Abdul Rehiman And Anr.
1997 Latest Caselaw 1044 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The petitioner, named above, has filed the present petition under Section 20 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act') averring that the petitioner is a Company, duly incorporated under the Companies Act, 1913, having its Registered Office at 17-B, Asaf Ali Road, New Delhi and Shri A.K. Ahluwalia, the General Attorney of the petitioner Company is duty authorised to sign and verify the present petition and to institute the present proceedings on behalf of the petitioner Company.

1.2.It is stated that on or about 16.5.83, respondent No. 1 as Hirer and respondent No. 2 as Guarantor made a proposal to the petitioner Company for hiring a Tata Diesel Truck, Model 1983, bearing Chassis No. 344-073-7-65466, Engine No. 692-DO 1-7-68523 and Registration No. Kef 3186 (hereinafter called as 'the said vehicle). The above proposal was accepted by the petitioner Company and the petitioner Company and respondents 1 & 2 entered into a Hire Purchase Agreement dated the 16th May, 1983 whereby respondent No. 2 stood as a guarantor for respondent No. 1 on the terms and conditions contained in the above said Agreement. The liability of the said Guarantor in terms of the said Agreement is coextensive with that of respondent No. 1 to the petitioner Company. In terms of the above said Agreement, respondent No. 1 inter-alia agreed to pay 47 monthly instalments of hire money of which 30 instalments were of Rs. 5,400.00 each and 16 instalments were of Rs. 5,000.00 each, and last one of Rs. 4,900.00 , falling due on 15th of each month beginning from 15th July, 1983. It is stated that respondent No. 1 was accordingly given the delivery/possession of the said vehicle.

1.3.It is stated that respondent No. 1, however, has paid only Rs. 61.650.00 towards Hire Money as against a sum of Rs. 2,46,900.00 thereby leaving a balance of Rs. l,85,250.00 . It is averred that a sum of Rs. 1,79,621.00 is due and payable on account of incidental expenses. Thus on 15.8.88, as per the case of the petitioner, a sum of Rs. 3,64,871.00 is due and payable by the respondents to the petitioner.

1.4.It is further stated that the petitioner Company, vide registered notice dated the 21st September, 1988, issued to the respondents, terminated the Hire Purchase Agreement of the said vehicle and called upon the respondents to pay a total sum of Rs. 3,64,871.00 , being the total of the Hire money, interest on overdue instalments and incidental expenses, calculated upto 15.8.88 and also requested the respondents to return the said vehicle to the petitioner failing which the petitioner would take appropriate steps to enforce its rights against the respondents.

1.5.It is further stated that in terms of the said Hire Purchase Agreement both the respondents are jointly and severally bound to pay a sum of Rs. 3,64,871 .00 calculated upto 15th August, 1988 and also to return the said vehicle in the same order and condition in which it was hired and in the event of their failing to do so, pay the estimated market value of the said vehicle as also further Hire money till such time the vehicle is returned together with overdue interest and incidental charges.

1.6.It is stated that according to Clause Vi of the above said Hire Purchase Agreement, all disputes/ differences and/or claims arising out of the said Hire Purchase Agreement are to be settled in accordance with the provisions of the Act and are to be referred to the sole arbitration of Shri Inderjit Gulati, Advocate and failing him to Shri Bal Kishan Jain, Advocate.

1.7.It has been prayed by the petitioner Company that the above said Hire Purchase Agreement, containing the arbitration clause, he directed to be filed in the Court and the disputes, differences and claims between the parties, arising out of the above said Hire Purchase Agreeement, in terms of the arbitration clause, be referred to the sole arbitration of Shri Inderjit Gulati, Advocate for decision. The petitioner has also claimed the cost of the present proceedings.

(2) As the respondents did not appear despite the service they were proceeded ex-parte in the present proceedings by the learned predecessor of this Court vide order dated 21.1.97.

(3) The petitioner has adduced the evidence by means of affidavits and has filed the affidavits of Shri A.K. Ahluwalia, General Attorney of the petitioner Company and that of Shri Rajiv Gupta, Director of the petitioner Company. Both Shri A.K. Ahiuwalia, General Attorney of the petitioner Company and Shri Rajiv Gupta, Director of the petitioner Company, in their affidavits, filed by them by way of evidence, have fully supported the case of the petitioner Company and have also proved and exhibited the relevant and material documents.

(4) On the basis of material on record, more particularly the facts as disclosed by said Shri A.K. Ahluwalia and Shri Rajiv Gupta in their affidavits, filed by them by way of evidence, which have gone on record unrebutted and unchallenged, which I see no reason to disbelieve, in my opinion, the case of the petitioner Company stands amply proved.

(5) In view of the above discussion the petition is allowed. It is directed that the Hire Purchase Agreement dated the 16th May, 1983, containing the arbitration clause, be filed in the Court and the disputes/differences between the parties, arising out of the above said Hire Purchase Agreement, are directed to be referred to the sole arbitration of Shri Inderjit Gulati, Advocate, Delhi as Sole Arbitrator for decision. No order as to costs. The order is ex-parte.