Madras High Court
P.Vijayakumar vs M/S.Sakthi Finance Limited on 8 July, 2021
CRP.NPD.No.4809 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
CRP(NPD)No.4809 of 2017
and CMP No.22666 of 2017
1. P.Vijayakumar
2. P.Sakthivel
3. P.Pappu ... petitioners
Vs.
M/s.Sakthi Finance Limited,
Rep. By its General Manager (Operations)
No.62, Dr.Nanjappa Road,
Coimbatore – 641 018. ... Respondent
PRAYER : Civil Revision Petition filed under Article 227 of the
Constitution of India against the attachment and sale passed in
REP.No.166 of 2014 in AC.No.63 of 2013 dated 04.11.2017 on the file
of the Fast Track Mahila Court, Namakkal.
For Petitioners : Mr.P.R.Balasubramanian
for M/s.A.Loba Mudra
For Respondent : M/s.Elaiyakumar
for M/s.Ramalingam Associates.
ORDER
(This case has been heard through video conference)
This civil revision petition has been filed against the order of
attachment and sale passed in REP.No.166 of 2014 in AC.No.63 of 2013
dated 04.11.2017 on the file of the Fast Track Mahila Court, Namakkal.
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CRP.NPD.No.4809 of 2017
2. The brief facts of the case is that the revision petitioners are
the judgment debtors. The first petitioner is the hirer having availed a
vehicle loan from the respondent under hire purchase agreement
No.023120305000, to the tune of Rs.7,60,375/- (advance amount of
Rs.5,50,000/- finance charges Rs.2,10,375/-) in respect of the Vehicle
2007 model Tata 2515 Goods Vehicle bearing Registration No.TN46-E-
9122. The loan was to be repaid in 35monthly instalments at the rate of
Rs.21,725/- commencing from 09.09.2011 and ending on 09.07.2014.
The first petitioner had took possession of the vehicle and 2nd and 3rd
petitioners have stood as guarantors to the loan availed by the first
petitioner. The 3rd petitioner as guarantor for the loan availed by the 1st
petitioner had executed personal guarantee agreement on 30.07.2011.
Thereby, the 2nd and 3rd petitioners stood jointly and severally liable to
pay the loan amount borrowed by the first petitioner. The first petitioner
had paid only 12 instalments and part of 13th monthly instalment totalling
to a sum of Rs.2,76,276/- and he had not paid the balance amount thereby
became a chronic defaulter and became liable to pay the additional hire
charges and expenses on delayed and defaulted instalments. In view of
the default committed by the petitioners in payment of hire instalments
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CRP.NPD.No.4809 of 2017
and additional finance charges, the respondent/claimant decided to
exercise the rights available under the hire purchase agreement to
repossess and sell the hired vehicle. At that time, the
respondent/claimant came to know that the first petitioner had colluded
with the other petitioners and transferred the possession and enjoyment
of the hire vehicle to 3rd parties without the knowledge of the consent of
the respondent/claimant and committed criminal breach of trust.
Thereafter, pursuant to the hire purchase agreement the
respondent/claimant initiated arbitration proceedings. As on 01.08.2013,
the petitioners were liable to pay the balance of hire amount
Rs.4,84,099/- expenses of Rs.4,500/- and additional hire charges of
Rs.59,588/- totalling a sum of Rs.5,48,187/-. Since, the petitioners did
not pay the amount, in spite of repeated demand, the respondent/claimant
invoked Clause 16 of the hire purchase agreement and referred the matter
to sole arbitrator.
3. The sole arbitrator had issued notice to the petitioners vide
RPAD informing them of the acceptance of the nomination and to appear
on 10.08.2013. Notice sent to the 1st and 3rd petitioners were returned
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CRP.NPD.No.4809 of 2017
unclaimed and the 2nd petitioner had received the notice. Whileso, on
10.08.2013, Advocates Mr.R.Krishnan and Mr.Gopikumar filed vakalat
for petitioners 1 to 3. On 12.10.2013, claim statement and documents
were furnished to the counsel for the petitioners and the case was posted
on 23.11.2013 for filing counter. On 23.11.2013, neither the petitioners
nor their counsel appeared and the case was adjourned to 08.02.2014.
On 08.02.2014, there was no representation for the petitioners, the
petitioners called absent and set exparte. The respondent/claimant filed
proof affidavit on 15.03.2014 and marked Ex.A1 to Ex.A11 and an
award was passed directing the petitioners 1 to 3 jointly and severally to
pay the respondent/claimant a sum of Rs.5,48,187/- with additional hire
charges at 18%p.a. from 12.10.2013 from the date of claim petition till
the date of payment and also with cost of Rs.9,000/-. Since, the
petitioners did not pay the amount, the respondent/claimant had filed
REP.No.166 of 2014. Thereafter, the execution Court had issued notice
to the petitioners and the first petitioner had filed counter. In the counter,
it was contended by the petitioners that the entire loan amount was
already repaid and a receipt of Rs.1,50,000/- dated 31.05.2013 was also
filed. The Court finding that the award was dated 14.06.2014 and the
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CRP.NPD.No.4809 of 2017
above receipt was dated 31.05.2013 prior to the award and that no
documents were filed to prove that the entire amount was paid, had
passed the impugned order attaching the property of the 3rd petitioner and
directed to sell the petition mentioned property, against which the
revision has been filed.
4. Heard the counsel and perused the materials available on
record.
5. The learned counsel for the petitioners would submit that the
loan amount is for Rs.5,50,000/- and the monthly instalment was fixed at
Rs.21,725/-p.m. and out of 35 instalments, the petitioners have paid 12
monthly instalments and further the petitioners have also paid an amount
of Rs.1,50,000/- to the Branch Manager that was not been taken into
account. The executing Court without looking into the payments made
by the petitioners had erroneously passed the order.
6. In response, the learned counsel for the respondent/claimant
would submit that the petitioners have availed the loan amount of
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CRP.NPD.No.4809 of 2017
Rs.7,60,375/- and they are liable to repay the amount in 35 instalments of
Rs.21,725/-p.m. The petitioner had paid only 12 instalments and
thereafter they had not paid any amount and the vehicle was purchased
under hire purchase agreement and the respondent/claimant is the owner
of the vehicle till the entire amount is settled, whereas the petitioner
without the knowledge of the respondent/claimant have sold the vehicle
and thereby committed the criminal breach of trust. The whereabouts of
the vehicle is also not known. Further, as on 01.08.2013, the petitioners
were liable to pay the balance hire amount of Rs.4,84,099/-, expenses of
Rs.4,500/- and additional hire charges of Rs.59,588/- totalling a sum of
Rs.5,48,187/-, thereby the respondent/claimant initiated arbitration
proceedings. The Arbitrator after due notice to the petitioners, passed
the award as early as 14.06.2014 and thereafter, the petitioners have not
paid even a single pie, thereby the EP Court had after giving sufficient
notice has passed the order. He would submit that there is no infirmity or
error in the order passed by the EP Court and thereby he would seek for
dismissing the present civil revision petition.
7. The arbitrator has passed the award on 14.06.2014 directing
the petitioners to jointly and severally pay the respondent/claimant a sum
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CRP.NPD.No.4809 of 2017
of Rs.5,48,187/- with an additional hire charges at 18% p.a. from
12.10.2013 date of claim statement till payment and cost of Rs.9,000/-
payable within three months from the date of Award. The Award of the
Arbitrator has also become final. The petitioners have not made any
payment after the Award. Whereas in violation of the hire purchase
agreement had sold the vehicle and committed criminal breach of trust.
Even in the EP Court after service of notice, no amount has been paid.
The EP Court after granting sufficient opportunity has passed the
impugned order.
8. This Court does not find any infirmity or irregularity in the
order passed by the Fast Track Mahila Court, Namakkal made in
REP.No.166 of 2014 in AC.No.63 of 2013 dated 04.11.2017.
9. In the result, the civil revision petition stands dismissed.
Consequently, connected miscellaneous petition is closed. No costs.
08.07.2021.
tsh
To
The Fast Track Mahila Court, Namakkal.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4809 of 2017
A.D. JAGADISH CHANDIRA, J.,
tsh
CRP(NPD)No.4809 of 2017
08.07.2021.
https://www.mhc.tn.gov.in/judis/
