Delhi High Court
Mahesh Chand Sharma vs M/S Arora Finance Co. on 1 May, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 392/2013
% 1st May, 2014
MAHESH CHAND SHARMA ......Appellant
Through: Mr. D.B. Yadav, Adv.
VERSUS
M/S ARORA FINANCE CO. ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 37 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the 'Act') impugning the
judgment of the court below dated 27.8.2013 by which the petition filed by
the respondent herein, petitioner before the court below under Section 9 of
the Act, was allowed and a receiver was appointed with respect to the
subject vehicle /three wheeler scooter (TSR) bearing registration No. DL-
1RL-1382.
FAO 392/2013 Page 1 of 5
2. The facts of the case are that the appellant herein, respondent in the
court below, had under a purchase-cum-loan facility extended by the
respondent, purchased the subject vehicle on the loan of Rs. 3,30,000/- and
which loan was to be repaid by the appellant in 36 EMI's of Rs.13,570/-
each. The appellant defaulted in payment of 19 EMIs, and consequently as
on May, 2011, there remained an outstanding of Rs.2,04,740/- payable to the
respondent herein. Since the appellant failed to pay the EMIs in spite of the
repeated requests, a legal notice dated 31.5.2011 was served upon him by the
respondent which failed to yield the desired result, resulting in filing of the
petition under Section 9 of the Act.
3. The case of the appellant before the court below was that the subject
vehicle was in fact given by the respondent in exchange for another TSR
vehicle bearing registration No. DL-1RL-2208 and which was after the
appellant had paid an amount of Rs.2,50,000/- to the respondent herein in
one go as complete payment due to the respondent for the subject vehicle.
4. The court below has disbelieved the appellant and for which purpose
reference has been made by the court below to the pleadings of a civil suit
which was filed by the appellant herein and wherein the appellant had taken
a totally different stand. In the civil suit appellant admitted that the subject
FAO 392/2013 Page 2 of 5
vehicle was already with the appellant. In the civil suit the appellant had
sought possession of the other vehicle bearing No. DL-1RL-2208. In the
civil suit appellant admitted that he had only paid 17 instalments with
respect to the subject vehicle. The court below has also disbelieved the
stand of the appellant that an amount of Rs. 2,50,000/- was paid because this
assertion was not supported by any documentary evidence.
5. The relevant observations of the court below are contained in para
nos. 20 to 28 of the impugned order and which read as under:-
"20. Going through the statement of account of the respondent
herein(plaintiff therein), he has furnished statement of account
from his bankers i.e. Canara Bank which has already been
exhibited as Ex.PW1/2 in the said statement. The said statement
is showing withdrawal entries of Rs.13,500/- on different dates
by way of cheques issued in favour of Arora Finance Company
i.e. the applicant herein. Besides, two more entries dated
18.10.2008 i.e. one Rs.10000/ and another of Rs. 3570/-.
21. In all, there are 15 such entries, the first entry being dated
18.11.2008 and the last of such entry being dated 19.05.2010, the
total of which amount would come to Rs. 2,02,500/-
+13570=2,01,670/-.
22. From the entire pleadings, particularly the prayer in the
plaint, it is clear that it is the other vehicle i.e. DL-1RL-2208, of
which the possession has been sought by the plaintiff/respondent
herein in the said suit. Further, the pleadings make it even more
clear that possession of TSR bearing registration no. DL-1RL-
1382, already very well with the plaintiff/respondent herein.
23. The respondent herein, who was examined as PW-1, in
his cross-examination conducted in the civil suit, has clearly
FAO 392/2013 Page 3 of 5
admitted that he had received the possession/delivery of vehicle
bearing registration no. DL-1RL-1382 in the month of August,
2008, and further he has also admitted that he paid only 17
installments for the above said vehicle.
24. Further admissions made by the plaintiff/respondent
herein in the said civil suit, are most important and required to be
reproduced herein. He has admitted that the principal amount
financed was Rs.3,30,000/-. He has admitted that monthly
installments amount was of Rs.13,570/-. He also admitted that
he has paid only 17 installments. Thus, the remaining balance
outstanding would come to Rs.2,30,690/-
25. The claim of the respondent that he has paid
Rs.2,50,000/- to the defendant/applicant herein is not supported
by any documentary material whatsoever. It is not even credible
that any person would be making such a huge payment without
any receipt therefore.
26. He has made allegations of being threatened by the
applicant, but he has not lodged even one complaint before the
police or before any other authority.
27. Even if, there was any transaction with respect to another
vehicle, it is clear that was a fresh loan applied by the respondent
independently of the first loan transaction, and he has attempted
to mix-up the two transactions, which were totally independent
of each other, and without being able to produce even a single
document to support his version.
28. The subject matter of the present petition is only TSR
being registration no. DL-1RL-1382, and if respondent has
introduced the subject matter of another vehicle therein, it is lay
upon him to establish this fact, which he miserably failed to do,
even prima facie." (underlining added)
6. In view of the above, it is clear that the appeal has no merit. The
appellant has deliberately defaulted as regards the payments to be made of
FAO 392/2013 Page 4 of 5
the subject vehicle which was got financed by him from the respondent
herein. The court below has rightly disbelieved the appellant on account of
conflicting stands taken as per the civil suit filed by the appellant and as per
the reply filed in the subject petition under Section 9 of the Act.
7. In view of the above the appeal has no merit, and the same is
therefore dismissed, leaving the parties to bear their own costs.
MAY 01, 2014 VALMIKI J. MEHTA, J.
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