Ankit Leasing & Finance Company ... vs Mahalakshmi Sugar Mills Co. Ltd. ...
2002 Latest Caselaw 858 Del

JUDGMENT

Sharda Aggarwal, J.

1. M/s Ankit Leasing & Fiance Company Ltd., the plaintiff was approached by defendant No. 1 for purchase of certain assets at prices to be finalised by defendant No. 1 and/or the supplier nominated by defendant No. 1. Defendant No. 1 offered to take on lease the assets so purchased by the plaintiff. At the request of defendant No. 1, plaintiff purchased one 1500 KW Brown Boweri Low Inlet Pressure Small Steam Turbine with Alternator (type DGSS-HF-24/4-AB 710/2) and the defendant No. 1 took on lease the said machinery vide lease agreement dated 14th June, 1994. Under the Agreement, defendant No. 1 was to pay to the plaintiff monthly Installments of Rs. 86,778/- from 16th June, 1994 to 16th November, 1996 and monthly Installment of Rs.1,78,444/- from 16th December,1996 to 16th May, 1997 i.e. total 36 Installments. The lease agreement was for three years commencing from 16th June,1994 and ending or 15th June,1997. As per the terms of the lease agreement, defendant No. 1 company was to pay the lease rental by demand drafts or cheques payable at New Delhi. In the event of defendant No. 1 being in arrears of such monthly lease Installments, the arrears of lease rental were to carry service charge at the rate of 2% per month simple interest on each Installment which remained unpaid. Defendant No. 1 failed to pay the lease rental as per the lease agreement and a sum of Rs.1,73,556/- became due as lease rentals and a sum of Rs.7,665/- became due as interest up to 30th April,1999. Thus, total sum of Rs.1,81,221/- is claimed as against the lease agreement dated 14th June, 1994.

2. Likewise, defendant No. 1 entered into another lease agreement dated 29th July,1994 for the purchase of one 1500 KW Skode made back pressure small steam turbine with alternator. The plaintiff purchased the same and gave it on rental to defendant No. 1. Under this agreement, defendant No. 1 was to pay to the plaintiff Rs.86,778/- per month as Installments towards lease rental starting from 31st July,1994 till 30th June,1997. This agreement was also for three years commencing from 29th July, 1994. In the event of default of payment of rentals, the lease rental was to carry service charges at the rate of 2% per months simple interest. Defendant No. 1 defaulted in payment of lease rentals as per the lease agreement and a sum of Rs.1,73,556/- became due towards lease Installments and a sum of Rs.82,527/- towards interest up to 30th April,1999. Thus a total sum of Rs.2,56,083/- has been claimed against the agreement dated 29th July,1994.

3. The plaintiff further purchased two Sugar Mills Rollers complete with C-45 material shaft 470 mm dia x 4135 mm long fitted with course grains C I Shall 870 mm dia x 1752 mm long Along with Phos-phorous bronze bearing CS housing and CS pinions, which was taken on lease by defendant No. 1 vide lease agreement dated 21st August,1995. Under this agreement, this monthly Installment was of Rs.58,229/- payable by the defendant. This agreement was also for three years commencing from 21st August, 1995. Like the other two agreements, there was a similar clause in this agreement also for payment of interest at the rate of 2% in the event of default of payment of rentals. The defendant No. 1 defaulted in payment of rentals even against the machinery supplied under this agreement and a sum of Rs.2,32,916/- became due from defendant No. 1 as rentals and a sum of Rs.78,235/- as interest. Thus a total sum of Rs.3,11,151/- became due towards lease rentals and interest against this lease agreement. The plaintiff has thus claimed as against all the three aforesaid lease agreements a total sum of Rs.7,48,455/-. Defendant No.2 had executed personal guarantees on 14th June,1994, 29th July,1994 and 21st August,1995 as against the three lease agreements and undertook joint and several liability with that of defendant No. 1 to pay the lease rentals. The suit is thus filed against both the defendants. The defendants had failed to make the payment despite service of legal notice on them.

4. Summons of the suit were served on both the defendants. Defendant No. 1 filed the Written Statement and the plaintiff filed replication thereto. Defendant No. 2 did not file any Written Statement. Defendants, however, stopped appearing and were proceeded ex-parte on 19th January,2001.

5. The plaintiff leas evidence by way of filing affidavit and proving the documents. The Affidavit of Shri D.R. Gupta, Director of the plaintiff company, has been filed who has proved the certified copy of the Resolution dated 15th April,1991 as Exhibit PW-1/1 authorising the deponent to institute the present suit and sign and verify the plaint. The deponent has proved the three lease agreements dated 14th June,1994, 29th July,1994 and 21st August,1995 as PW-1/2, PW-1/5 and PW-1/8. The personal guarantees executed by defendant No. 2 in favor of the plaintiff with regard to the three agreements have been proved as PW-1/3, PW-1/6 and PW-1/9. The deponent has proved the statement of account showing that a sum of Rs.1,81,221/- was due from the defendant as lease rentals and interest up to 30th April, 1999 under the lease agreement dated 14th June, 1994 as Exhibit PW-1/4. Similarly, the statement of account showing the amount due as Rs.2,56,083/- towards lease rentals and interest as against the lease agreement dated 29th July,1994 has been proved as Exhibit PW-1/7. The third statement of account showing the total amount due towards lease rental and interest amounting to Rs.3,11,151/- pertaining to the lease agreement dated 21st August,1995 has been proved as Exhibit PW-1/10. The deponent has also proved on record the statement of account showing the total amount of Rs.7,48,455/- against all the three lease agreements as Exhibit PW-1/11. The plaintiff has categorically proved that defendant No. 1 had defaulted in making the payment of the lease rentals for the machinery supplied under the three agreements and as up to the date of fielding of the suit a sum of Rs.7,45,455/- had fallen due including the interest till 30th April,1999 and that the defendant No. 1 as well as defendant No. 2 being the guarantor failed to pay the same despite service of legal notice, copy of which has been proved on record as Exhibit PW-1/12. The postal receipts, under which the notice was sent and the acknowledgment due card on defendants 1 and 2 have been proved as Exhibit PW-1/13 and PW-1/15. The defendants though put in appearance but failed to contest the suit and got themselves proceeded ex-parte. The only defense taken by the defendant No. 1 in his Written Statement is that the lease agreements were not enforceable as they were not registered. According to defendant No. 1 the assets purchased by the plaintiff and given on lease rental to defendant No. 1 was immoveable property. On the face of it, this defense has no substance as the assets under the lease agreement purchased by the plaintiff for defendant No. 1 and given on lease rentals were moveable being the machinery. Statement of the deponent, who is Director of the Company, remained unrebutted. In view of the unrebutted deposition of the plaintiff's Director, the plaintiff's case stands proved. The plaintiff is, thus, entitled for the suit to be decreed.

6. Accordingly, the suit is decreed for a sum of Rs.7,48,455/- in favor of the plaintiff and against the defendants. The plaintiff is also entitled to pendente lite and future interest at the rate of 18% per annum on the principle amount from the date of institution of the suit till realisation. The suit is decreed with costs.