National Small Industries ... vs Anil Kumar Marwaha And Anr.
1997 Latest Caselaw 502 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The plaintiff, named above, has filed the present suit against the defendants for the recovery of Rs. 2,97,025 .00 as arrears of instalments and for the possession of hired machines valued at Rs. 5,08,076.00 averring that the plaintiff is a Government Company within the meaning of the Companies Act, 1956, having its registered office at Okhia Industrial Area, Okhia, New Delhi and Shri B.L. Malhotra, General Manager and General Attorney of the plaintiff-Company is competent to sign and verify the plaint and to institute the present suit on behalf of the plaintiff-Company.

1.2. It is alleged that defendant No. 1 is the proprietor of M/s. Competent Offset Printers and defendant No. 2 stood as a guarantor vide Guarantee Bond dated 23.2.1990 for the due performance and payment of dues under the Hire Purchase Agreement dated 23.2.1990, executed by defendant No. 1. It is further stated that defendant No. 1 and plaintiff entered into a Hire Purchase Agreement dated 23.2.1990 and defendant No. 1 obtained machines (Single Colour Sheet Fed Offset Printing Machine, Model PO-25 with D.C. Drive Motor, complete with accessories with 7,500 speed). Defendant No. 1 agreed to pay the hire purchase value of Rs. 9,13,331.00 under the agreement dated the 23rd February, 1990 to the plaintiff- Company in 13 half yearly instalments and first instalment of hire amounting to Rs. 63,037.00 was payable by defendant No. 1 to the plaintiff-Company on 1.4.1992 and subsequent 12 half yearly instalments of hire, each of Rs. 27,647/ - were payable after every six months till the whole of the hypothecated value of the machine was paid. It is alleged that according to the terms of the Agreement in question the defendants were required to pay the instalment of hire on the dates stipulated therein. The defendants also agreed that in case of default, defendants would be liable to pay interest @ 2% per annum more even and above the normal rate of interest on such default instalments or part as the case may be until payment. The normal rate of interest was @ 16% per annum. 1.3. It is further the case of the plaintiff-Company that inspite of repeated demands, the defendants failed to pay the instalment of hire on due dates as per the Hire Purchase Agreement and a number of cheques issued by the defendants were also dishonoured when presented to the Bankers for encashment. The plaintiff Company also got issued a registered legal notice dated the 29th March, 1994 terminating the Hire Purchase Agreement and calling upon the defendants to pay the outstanding dues and handover the possession of the machines but the defendants failed to make the payment and also failed to return the machines. It is alleged that the plaintiff is the owner of hired machines under the abovementioned Hire Purchase Agreement and as the agreement stands terminated the plaintiff is also entitled to claim possession of the machines and in the event of the failure of the defendants in not returning the machines the plaintiff is entitled to recover a sum of Rs. 5,08,076.00 being the residual value of the machines from the defendants. It is alleged that on the date of the filing of the suit a sum of Rs. 2,97,.025 .00 is due and payable to the plaintiff by the defendants on account of arrears of hire instalments and a sum of Rs. 5,08,076 as residual value of machines in the event of failure of defendant No. 1 to return the machines to the plaintiff. The liability of defendants 1 & 2 is joint and several. The plaintiff has also claimed interest pendente lite and future @ 18% per annum with costs.

As the defendants failed to appear despite service, they were directed to be proceeded ex-parte in the present proceedings by the learned Predecessor of this Court vide order dated the 6th March, 1996.

(2) The plaintiff, in support of its case has adduced evidence by means of an affidavit signed and sworn by Shri B.B. Biswas, Deputy Manager (Law) of the plaintiff- Company. This witness in his affidavit, filed by him by way of evidence, has fully supported the case of the plaintiff-Company. On the basis of the facts, as disclosed by said Mr. B.B. Biswas, Deputy Manager(Law) of the plaintiff-Company, in his affidavit filed by him by way of evidence in support of the case of the plaintiff, which has gone on record unrebutted and unchallenged which I see no reason to disbelieve, the case of the plaintiff-Company in my opinion stands amply proved.

(3) In view of the above discussion, a decree for a sum of Rs. 2,97,025.00 (Rs. two lacs ninety-seven thousand & twenty-five only) as arrears of hire instalments and for a sum of Rs. 5,08,076.00 (Rs. five lacs eight thousand & seventy-six only) as residual value of machines in the event of failure of defendant No. 1 to return the machine to the plaintiff-Company, is passed in favour of the plaintiff-Company and against defendants 1 & 2 together with costs and pendente lite and future interest @ 18% per annum. The liability of defendants 1 & 2 will be joint and several.

(4) DECREE-SHEET be drawn up accordingly and thereafter the file be consigned to record room.