Premier Investors v. Sk. Abdul Rasid — 1995 DIGILAW 395 (CAL)

JUDGMENT The Court : This is an application by the hirers of a vehicle for setting aside the alleged sale of a vehicle by a Receiver and for recalling or modification of an order dated 2nd March, 1992. The vehicle's Registration Number is BR-IB/7199. M/s. Premier Investors entered into a hire purchase agreement with the hirers in respect of the vehicle on 6th September, 1990. As is usual, the possession of the vehicle was made over by Premier Investors (hereinafter referred to as the firm) to the hirers upon down payment of a certain sum. The balance amount due was payable in instalments. There is no dispute that the hirers committed default after making payment of some of the instalments. The hire purchase agreement provided for appointment of a sole Arbitrator. According to the hirers the sole Arbitrator was appointed without the consent of the hirers. An application under s. 41 of the Arbitration Act, 1940 was made by the firm and an ex parte order was obtained appointing an Advocate as a Receiver. The Receiver seized the vehicle and kept it in the Chandpura Police Station, Dist. Vaishali in the State of Bihar. A settlement was arrived at between the parties on 25th February, 1992. The terms of the settlement were put in and an order was passed thereon by consent of the parties on 2nd March, 1992. It is this order that is sought to be recalled or modified. 2. Under the order dated 2nd March, 1992 the hirer was to pay an agreed amount in instalments. The Advocate Receiver was discharged and one Mr. Devi Prasad Ganguly was appointed Receiver and possession of the vehicle was made over to the hirers. 3. The hirers paid certain instalments but admit that default was committed in making payment Rs. 1, 16, 990/- which remained payable to the firm. According to the hirers a further payment of Rs. 38,000/- had also been made (Rs. 30,000/- by Demand Draft and Rs. 8,000/- in cash) at the time of signing the terms of settlement. 4. On 23rd March, 1994, the vehicle was seized by the agent of the Receiver in Bihar where the hirers were plying the vehicle and deposited with the Chandpur op. 38,000/- had also been made (Rs. 30,000/- by Demand Draft and Rs. 8,000/- in cash) at the time of signing the terms of settlement. 4. On 23rd March, 1994, the vehicle was seized by the agent of the Receiver in Bihar where the hirers were plying the vehicle and deposited with the Chandpur op. The hirers came to Calcutta from Bihar and filed an application for modification of the order dated 2nd March, 1992 by extending the time fixed to make payment of the arrear instalments. The application (hereinafter referred to as the first application) was moved on 25th April, 1994. On 3rd June, 1994 the firm appeared and obtained directions for filing of affidavits. In its affidavit in opposition the firm claimed that the vehicle had been sold on 30th May, 1994 by the Receiver to one Sardar Lakbir Singh, son of Sardar Darsan Singh of 130/1, B.T.Road, Calcutta 700035. According to the hirers no sale was in fact transacted and the fact of sale had been concocted by the firm to deprive the hirers of any relief they might have obtained from this Court by virtue of the first application. 5. The first application initially came up for hearing before A.N. Ray, J. who released this matter from his list. The matter was thereafter assigned to this Court. The application was dismissed as infructuous in view of the submission made by the firm that the vehicle had been sold. Liberty was, however, given to the hirers to move an application for setting aside the sale. This application has been filed pursuant to such leave on 6th September, 1994. 6. On 7th September, 1994 an interim order was passed restraining the firm and the Receiver from taking any step or further steps towards the sale of the vehicle. Directions were given for filing of affidavits and the matter was adjourned till 21st September, 1994. On 24th November, 1994 an order of status-quo was passed with regard to the ownership and possession of the vehicle as on that date. The hirers were directed to serve a copy of the application on Sri Lakbir Singh, the alleged purchaser by 28th November, 1994 and the matter was directed to appear in the list on 30th November, 1994 for hearing. 7. The hirers were directed to serve a copy of the application on Sri Lakbir Singh, the alleged purchaser by 28th November, 1994 and the matter was directed to appear in the list on 30th November, 1994 for hearing. 7. It is the hirer's case that on 25th November, 1994 the hirers' Advocate's Clerk sought to serve a signed copy of the minutes on the alleged purchaser through the Advocate of the firm. This was refused. On the same date i.e., on 25th November, 1994 a copy of the application together with the signed copy of the minutes of the order dated 25th November, 1994 were sent to Lakbir Singh by Registered Post with A/D. The registered letter was returned with the endorsement "not claimed" showing several dates on which attempts were made by the Postal Authorities to deliver the letter to the purchaser. On the following date, i.e. 25th November, 1994 the hirers' Advocate's Clerk went to the address of Lakbir Singh and is alleged to have met him, but Lakbir Singh refused service on the ground that he had no knowledge about the whole matter and that he had not purchased any vehicle from anyone of that nature. 8. The matter was called on for hearing on 1st December, 1994. No one appeared on behalf of the alleged purchaser. The matter was accordingly adjourned till 5th December, 1994 when Lakbir Singh was directed to be personally present. In default a warrant of arrest was directed to be issued against him. The hirer's Advocate was directed to communicate the order to Lakbir Singh. 9. On 1st December, 1994 the hirers' Advocate's Clerk went with a signed copy of the minutes. On this occasion it is alleged that the Clerk met the father of Lakbir Singh who said that Lakbir Singh has left for Punjab. Service was accordingly refused. 10. By an order dated 5th December, 1994 this Court directed Deputy Sheriff to hold an enquiry as to whether Lakbir Singh was in Calcutta. If so, the deputy Sheriff was directed to see to it that Lakbir Singh was arrested on 6th December, 1994 when the matter would appear in the list. The Deputy Sheriff submitted report that he could not find any address of 130/1, B. T. Road, Calcutta. The father of Lakbir Singh, Darshan Singh was present on 6th December, 1994. If so, the deputy Sheriff was directed to see to it that Lakbir Singh was arrested on 6th December, 1994 when the matter would appear in the list. The Deputy Sheriff submitted report that he could not find any address of 130/1, B. T. Road, Calcutta. The father of Lakbir Singh, Darshan Singh was present on 6th December, 1994. Darsan Singh was examined on oath by this Court. Having regard to the report of the Deputy Sheriff and the answers given by Darshan Singh this Court was of the view that the matter should be set down for trial on evidence. The matter was directed to appear in the list on 9th January, 1995. By a further order the Motor Vehicle Authorities were restrained from registering any further transfer in respect of the vehicle in question. 11. An affidavit in opposition was affirmed by the Receiver, D.P. Ganguli on behalf of the firm. No affidavit has been filed by Lakbir Singh. 12. In D. P. Ganguli's affidavit it has been alleged that the order dated 2nd March, 1992 was passed by consent of parties and could not be challenged. It is further stated that admittedly the hirers had defaulted in making payment in terms of the settlement and that in terms of the settlement the Receiver was entitled to sell the vehicle. It is stated that the Receiver acted bona fide. After the seizure of the vehicle the Receiver had negotiated with several parties to get the highest bid and Lakbir Singh was found to have bid the highest. Lakbir Singh is alleged to have purchased the vehicle on 16th April, 1994 for Rs. 1,50,000/-. Rupees thirty thousand was allegedly paid on 16th April, 1994 and the balance of Rs. 1.20,000/- on 30th May, 1994. It is further stated that the vehicle was in the possession of Labkir Singh. It is stated that the vehicle was damaged and some parts were missing and the vehicle was lying idle for several months in the police station and that in the circumstances the price obtained for the vehicle was more than the market price. 13. In respect of the hirers' case Sk. Abdul Rasid one of the hirers and Sk. Alamgir, the hirers' Advocate clerk were examined. Lakbir Singh was represented through Counsel and was examined as a witness. The firm called D.P. Ganguli as its sole witness. 14. 13. In respect of the hirers' case Sk. Abdul Rasid one of the hirers and Sk. Alamgir, the hirers' Advocate clerk were examined. Lakbir Singh was represented through Counsel and was examined as a witness. The firm called D.P. Ganguli as its sole witness. 14. At the hearing it was contended on behalf of Lakbir Singh that without challenging the decree the challenge to the sale was not maintainable. The second submission is that Lakbir Singh was a bona fide purchaser for value without notice. The third submission is that the hirers were in default and the sale took place as a result of their own wrong doing and that they could not take advantage of such wrong. 15. On behalf of the firm it has been submitted that the application was not maintainable and that a suit should have been filed. It is submitted that the Court cannot decide a question of title under s. 41 of the Arbitration Act, 1940. It has also been submitted that the challenge to the consent order did not lie. Finally it is submitted that the application is not a review application and that even if it were, the application was barred by limitation. The point of res judicata though raised was expressly not pressed at the hearing. 16. Before dealing with the merits of the case the preliminary objections raised by the firm and the purchaser to the application are considered. 17. The submission of the purchaser that without challenging the decree the application for challenging the sale was not maintainable, is unacceptable. The hirers have not questioned the power of sale conferred by the decree but have questioned the exercise of that power by the Receiver. In challenging the sale on challenge is thrown to the decree. 18. The firm has questioned the maintainability of the application on the ground that a suit should have been filed. No arguments were put forward in support of this proposition nor any authority cited. It is arguable on the other hand that the consent order dated 2nd March 1992 which finally disposed of the entire dispute between the parties to the settlement superseded the proceeding pending before the Arbitrator. The terms of settlement even records that the hirers shall in full and final settlement of the claim pay a sum of Rs. 2,06,200/- and interest and other sums if payable. The terms of settlement even records that the hirers shall in full and final settlement of the claim pay a sum of Rs. 2,06,200/- and interest and other sums if payable. The mode of payment of this sum has been provided in the terms of settlement. The terms of settlement provide that on recept of the entire amount in terms of the order the firm shall issue the hire purchase termination form and no objection letter. It is not the firm's case that apart from the due as covered under the terms of settlement it has any other claim against the hirers. The order dated 2nd March, 1992 is really a decree within the meaning of s. 2(2) of the Code of Civil Procedure. The order conclusively determines the rights of the parties with regard to the matter in controversy in the arbitration proceedings. The Court had the power to pass such a decree under the provision of Order XXIII Rule 3 of the Code of Civil Procedure read with s. 141 of the Code and s. 41 (a) of the Arbitration Act, 1940. 19. That being so this Court also has the power to determine all questions relating to the execution, discharge or satisfaction of the decree by way of an application under s. 47 of the Code and not by way of a separate suit. Section 47 in express terms empowers the Court to decide all questions between the parties to the suit relating to the execution, discharge and satisfaction of the decree. There is no authority and nothing in the language of the section justifying the Court in reading the words "except questions relating to title" after the words "all questions." 20. In any event no distinction lies between a final decree and an order because s. 36 of the Code makes the provisions of the Code of Civil Procedure relating to the execution of decrees applicable to the execution of orders including payment under an order. In any event no distinction lies between a final decree and an order because s. 36 of the Code makes the provisions of the Code of Civil Procedure relating to the execution of decrees applicable to the execution of orders including payment under an order. It may be noted that Clause 9 of the settlement provides: "In case of any default, the respondents shall pay to the petitioner interest thereon at the rate of 24% per annum since the date of default until payment and in default of payments of any two instalments or the last instalment or any part thereof, the entire amount remaining outstanding shall at once become payable and the petitioner shall take possession of the vehicle and this order will be executable." (Emphasis supplied) 21. For this reason also the provisions of s. 47 of the Code would be attracted giving the Court the jurisdiction to entertain the application. The jurisdiction is not being exercised under s. 41 of the Arbitration Act simpliciter but under s. 41 read with s. 36 and 47 of the Code. 22. This submission of the firm is therefore rejected. The second objection of the firm relates to the claim of the hirers for extension of time to make payment of the instalments under the order. It is contended that as the order was by consent it cannot be varied except by consent. 23. In Khitipati Roy vs. Dharani Mohan Mukherjee, AIR 1921 Cal 229 an order by consent was passed. Subsequently an application was made to vary the consent order or to set it aside. One of the contentions raised was that the order could not be varied. Ghosh, J. held: "That an order by consent can be revised or varied in circumstances showing that the consent had been given under misrepresentation or mistake is well settled and it is not necessary for me to deal at length with the authorities." 24. This view was applied in the case of decrees by a Division Bench of this Court in Ashoke Kumar Daw v. Gobinda Chandra Dey , AIR 1984 Cal 337 . 25. In Deepchand Mini vs. Tikam Chand Mini, AIR 1974 Cal 222 the Court had to consider whether a compromise decree could be varied. It was held that the general rule was that a compromise decree passed with the consent of all parties cannot be varied. 25. In Deepchand Mini vs. Tikam Chand Mini, AIR 1974 Cal 222 the Court had to consider whether a compromise decree could be varied. It was held that the general rule was that a compromise decree passed with the consent of all parties cannot be varied. This general rule is however subject to a few exceptions recognised by the Courts of equity. It was further held that where there is a penal or forfeiture clause the courts have the jurisdiction of granting relief against such provisions by extending the time for payment of money without the consent of the decree holder, provided however, the time for payment is not the essence of the contract. 26. Having regard to the authorities it would follow that the Court has the power to vary a consent order under certain circumstances. Whether such circumstances exist in this case and whether the Court will exercise its power are questions which relate to the merits but it cannot be said that the application for variation of a consent order is ipso facto not maintainable. 27. There is another aspect of the matter, namely, unless an order is drawn up, completed and filed a Court always retains jurisdiction over the matter in which the order is passed and may if the facts so warrant, vary or even recall the order (See: In the matter of Steel Construction, 39 CWN 1259). 28. The last preliminary objection of the firm is that the application is barred by limitation. The challenge in this application is to the alleged sale which took place on 16th April, 1994. The first application for extension of time to make payment was taken out on 25th April, 1994. This application for setting aside the sale and the order dated 2.3.92 was moved on 7th September, 1994 after the first application was dismissed. I have already held that the application is maintainable and comes within the purview of s. 47. It is not an application for review as contended by the firms. It is well established by authority that applications under s. 47 are governed by Article 137 of the Limitation Act which allows the application to be made within a period of 3 years from the date on which the right to sue accrues (See Rasomoy Mitra vs. Smt. Lachmi Todi , AIR 1982 Cal 178 ). 29. It is well established by authority that applications under s. 47 are governed by Article 137 of the Limitation Act which allows the application to be made within a period of 3 years from the date on which the right to sue accrues (See Rasomoy Mitra vs. Smt. Lachmi Todi , AIR 1982 Cal 178 ). 29. The cause of action as far as the sale is concerned arose at the earliest when the sale took place. 30. Even as regards the prayer for extension of time to pay the instalments the Hirers would be entitled to file the application within a period of three years from the date of the order or at least on the expiry of the period fixed for payment. The application having been filed well within the period of three years it cannot be said that it was barred by limitation. 31. I now come to the merits of the case which involve the determination of the following two issues: (1) Whether the vehicle was in fact sold to Lakbir Singh as alleged by the firm? (2) If not, whether the Hirers would be entitled to an extension of time to pay the instalments as fixed buy the order dated 2nd March 1992? Re. 1 : 32. The onus of proving the fact of sale was on the firm. The firm chose to prove its case only through Mr. D.P. Ganguli, the Receiver. Before considering the Receiver's evidence it is necessary to note the wrong numbering of the questions put to him. The questions are numbered serially up to 115 and thereafter for the evidence taken on 14.7.95. The questions have again been numbered from 1 onwards instead of continuing from 115. In this judgement the reference to the Receiver's answers will accordingly indicate the serial in brackets after the question. 33. The Receiver has admitted that he is the financial consultant and advisor of the firm. (Q1-3). He said that such service was honorary (Q109). In answer to Q. 111 (2) he said that the Chairman of the firm was his friend. They had worked together. He was paid Director's fees if he attended office and he was given a car and other perquisites by the firm. (Q. 112(2)). He has also said that as a Receiver his primary responsibility was to the Court (Q 10(2)). They had worked together. He was paid Director's fees if he attended office and he was given a car and other perquisites by the firm. (Q. 112(2)). He has also said that as a Receiver his primary responsibility was to the Court (Q 10(2)). In my opinion, however, the Receiver has conducted himself in a way which leaves no manner of doubt in my mind that it was the interest of the firm alone with which he was concerned. It further appears from the evidence that the Receiver had no knowledge of the alleged sale but has been used merely as a front by the firm. The different stages of the alleged sale will show this :- (1) he had no knowledge of the date of default by the hirers (Q 22) nor of the statement of dues annexed to his affidavit and affirmed by him as being true to his knowledge (Q 111). The evidence of his alleged satisfaction that there had been default by the hirers in making payment in terms of the settlement is contradictory. In answer to Q. 36 he said that 8 instalments had fallen due. But after looking through a letter dated 21.3.94 written by the Manager of the firm he said that the default was for 28 instalments (Qs. 47-49). Then again in answer to Question 18 he spoke of default in more than 60 instalments. In answer to Q. 22 the default according to the Receiver was 12. No notice of default was admittedly given to the Hirers by the Receiver (Q25(2)). (2) Upon such alleged satisfaction of default the vehicle was seized for the second and last time. The Receiver said that it had been seized by his agent and yet he was unable to name the agent without going through a slip of paper held in his hand (vide Qs. 18-19). The agent is an employee of the firm. The agent was not called to give evidence. (3) The Receiver then stated that he called a meeting in the middle of April (Q. 32) to get the highest bidder of the vehicle (Q.33). Nothing was said as to how he called this meeting whether by way of a notice, circular or otherwise (Qs. 54-55). No notice of this meeting was given to the hirer. (Q33(2)). (3) The Receiver then stated that he called a meeting in the middle of April (Q. 32) to get the highest bidder of the vehicle (Q.33). Nothing was said as to how he called this meeting whether by way of a notice, circular or otherwise (Qs. 54-55). No notice of this meeting was given to the hirer. (Q33(2)). (4) The Minutes of the alleged meeting at which the alleged sale was held were not prepared by the Receiver himself but by his Clerk (Q. 58). His Clerk's name was stated to be Rabin Chatterjee (See: Q. 73(2). According to the Receiver the same Clerk had also prepared the bid sheet (Qs. 76-77(2)). However, the most cursory examination of these been prepared by the same person. The style of writing (one is slanted forwards and the other backwards) are very different. The letter formations are markedly distinct. The minutes have been prepared by someone knowing grammar and spelling whereas the bid sheet is grammatically erroneous and misspelt. For example, the word "settlement" has been correctly spelt in the minutes. In the bid sheet it has been twice written as "settelment". (5) The Receiver had no knowledge of the contents of the bid sheet. He said in answer to Q. 54(2) that the bid sheet recorded how payments were to be made. In fact it does not. Again the bid sheet records "I call (sic) the ..(illegible).. Buyers to give me suitable offer at fair price. I seen (sic) that vehicle is under (sic) very poor condition." But in answer to Q.84(2) he stated that he had never seen the vehicle. (6) In view of his answer to Q. 84(2) that he had never seen the vehicle, he was confronted with his affidavit where he has stated that "the fact remains that the respondent No. 1 (viz. one of the hirers) after rough handling of the vehicle damaged the vehicle to a great extent and some of the parts of the said vehicle were missing and vehicle was lying idle for several months in the police station." this paragraph has been affirmed as true to the Receiver's knowledge. After going through this paragraph he then said that he had come to know the condition of the vehicle from his agent only and that he had no personal knowledge (Q94-95(2)). After going through this paragraph he then said that he had come to know the condition of the vehicle from his agent only and that he had no personal knowledge (Q94-95(2)). In fact the agent had said that the vehicle was in good and running condition. This was admitted in two letters written by the alleged agent of the Receiver to the Officer in Charge Chandpura P.S. where the vehicle had been kept during the period of the last seizure (Ex M and L). The first letter is dated 24th March, 1994 and was submitted to the police by the agent immediately after seizure from the hirers; the second letter dated 19.7.94 was written at the time of removal of the vehicle from the Chandpur police station. The fact that the vehicle was in running condition was thereafter admitted by the Receiver in cross examination. [Q 46(2), Q 85(2)]. . (7) The vehicle was lying all along at the Chandpura P.S. District Vaishali in Bihar. But the Receiver says that all the bidders had inspected the vehicle before bidding (Q 85(2). This is not mentioned in the bid sheet or the minutes. (8) The condition of the vehicle has a direct bearing on the price obtained for it. The Receiver did not get the vehicle valued. He assessed the value on the basis of his own experience in driving a car. [Q 78-82(2)]. In paragraph 32 of his affidavit the Receiver has said that having regard to the damaged condition of the vehicle the sale price of the vehicle was more than the market price. Given the admission in his oral testimony that the vehicle was in running condition, it would be safe to conclude that the vehicle was sold at an under value. (9) The Receiver had no knowledge of the payments allegedly made by Lakbir Singh. In Q. 62 he says that he received payment of Rs. 30,000 in one instalment and another instalment of Rs. 60,000. In answer to Q. 72 where he was asked in examination in chief: "He has paid you only two instalments?", he said "First instalment is for Rs. 30,000/- and the other is also Rs. 30,000/- ultimately Rs. 60,000/- Then I signed the paper." It was only in answer to a question "You told you got Rs. 60,000. In answer to Q. 72 where he was asked in examination in chief: "He has paid you only two instalments?", he said "First instalment is for Rs. 30,000/- and the other is also Rs. 30,000/- ultimately Rs. 60,000/- Then I signed the paper." It was only in answer to a question "You told you got Rs. 150000 in three instalments?" which sought to correct the Receivers evidence that he said "Yes" (Q-79). (10) The Receiver had no knowledge personally of the payments of the alleged sale price. The payments were not made to him but to the Manager of the firm. The Receiver merely signed the Receipts (Ex H series) on the strength of the Manager's signature on the Receipt. (Q 88). The Manager has not been called to give evidence. No signature of the manager appears on the original receipts. (11) In answer to Q. 61 & 82(2) the Receiver said that he gave possession of the vehicle to the purchaser after 30th May, 1994 when he got payment of the final instalment. The documents relating to transfer of ownership of the vehicle (Ex. 1 and J series) are all dated 30th May 1994. The originals were alleged to be with the purchaser (Q 93-105). No receipt either of the purchaser or of the Motor Vehicles Authority has been produced. On the other hand it is evident from Ex. M that the Vehicle was in the custody of the Police Station in Chandpura till 19th July 1994 when it was taken possession of by the Agent of the Receiver. There is no mention of the alleged sale in Ex. M nor of any transfer of ownership. The evidence of the Receiver regarding the date of delivery of the vehicle is therefore incorrect. 34. The evidence of the Receiver is in the circumstances not creditworthy nor has he conducted himself in a manner consistent with the obligations of an officer of Court. 35. The evidence of the purchaser is no better he has not only contradicted himself but also the evidence of the Receiver. It was the Receivers statement that no formal notice of the sale was issued. (Q55-62). But the purchaser said that the company issued "some papers in this connection" (Q12). 35. The evidence of the purchaser is no better he has not only contradicted himself but also the evidence of the Receiver. It was the Receivers statement that no formal notice of the sale was issued. (Q55-62). But the purchaser said that the company issued "some papers in this connection" (Q12). Again, the Receiver said that the possession of the vehicle was handed over by him to the purchaser after the receipt of the last instalment of the sale price on 30th May, 1994 (DPG Q-61 (2)). But the purchaser said that he got the documents along with possession of the vehicle which he got from the Police Station at Chandpura in July, 1994 long after making payment. (LS Qq. 31-33, Q66 & Q-78). Although the Receiver said the original sale agreement and documents relating to transfer of ownership were with the purchaser none of these were produced by the purchaser at all. 36. The evidence given by the purchaser was prevaricatory and in my view he was a wholly unreliable witness. He said in answer to Q. 47 that he had purchased "vehicles" from the firm. When asked to give particulars he said he had only purchased one vehicle on a date that he could not remember (Q 49). He said that he sold the earlier vehicle the number of which he did not remember to a person whose name he did not remember (Q-68 & 69). According to the purchaser he purchased the earlier vehicle for Rs. 1,30,000/- or Rs. 1,35,000/- (Q-74) and he sold it for Rs. 1,70,000/ - (Q-70). He should have made a profit of Rs. 40,000/- or Rs. 35,000/-. But he said that he made a profit of only Rs. 4,500/-or Rs. 5,000/- (Q-73). He said he sold the earlier vehicle 3/4 months after he purchased it (Q-53) and in the very next breath he said he sold the vehicle immediately after he purchased it (Q-54). He said the vehicle in question was sold to him in Bihar and that the police at Chandpura (sic) give him the vehicle (Q. 78) but he could not remember the date (Q80). But Ex-M which is a copy of a Diary entry dated 19.7.94 in Hindi as officially translated in English reads: "To The Police Station in Charge, Chandpura O.P. District. But Ex-M which is a copy of a Diary entry dated 19.7.94 in Hindi as officially translated in English reads: "To The Police Station in Charge, Chandpura O.P. District. Baisali, Sir, It is humbly submitted that 1 Shiv Kumar Shaw S/o. Shri Ganga Shaw am a resident of P. 15, Indian Exchange place Extension, Calcutta -700073. I having taken vehicle No. BR-1B-7199 (Taxi) under my own possession in accordance with the order of the Calcutta High Court and with your assistance, handed over the same for its Security to Chandpura O.P. on 24.3.94. On 17.7.94 I received the vehicle from there in a good and proper condition. The Calcutta High Court has appointed Deb Prasad Ganguly Ji as the Receiver and he has made me the authorized agent. The engine no. of the vehicle is 497 SP 21970683 and the chasisNo. is 357011949119. I am taking the vehicle to Calcutta. Submitted for information and necessary action. Yours faithfully, Shiv Sankar Shaw Made the diary entery gave the applicant Shiv Sankar Shaw the order to take away the vehicle. Sd/ Santosh Kumar Singh, In Charge, 19.7.94 Chandpura O.P. In charge, O.P. Chandpura." 37. There is no mention of Lakbir Singh or the sale at all and the purchasers evidence to this effect is false. When he was asked by the Court to produce his driving licence on the next Friday he did not nor did he appear at all. 38. The purchaser is admittedly a broker (Q90). In other words he works as a middle man (Q.90). The only occasion in which he had allegedly purchased a vehicle earlier, he had sold it out immediately thereafter for a profit (Qs. 54, 73). The evidence as to the source of funds from which he could purchase the vehicle in question (a. 92) is without any particulars and unreliable. If he had indeed paid Rs. 1,50,000 for the purchase of the vehicle by borrowing from money lenders it is not credible that he would not have taken possession of the vehicle purchased immediately thereafter. He displayed no interest in the vehicle. No explanation has been given as to why he waited for two months before, according to him, getting possession of the vehicle after he had parted with such a large sum of money. He displayed no interest in the vehicle. No explanation has been given as to why he waited for two months before, according to him, getting possession of the vehicle after he had parted with such a large sum of money. No explanation has also been given as to why the vehicle was not got registered in his name even though all the documents relating to the transfer of him on 30th May 1994 (Q.32). His evidence that the vehicle was in a bad condition when he received possession in Bihar in July 1994 is contrary to the statement of the Receiver as well as that of the Receiver's agent as recorded in Exs. M & L. It is unbelievable that a person who has borrowed money to purchase a commercial vehicle would have been content to let the vehicle lie idle without plying it. The purchaser said that he had a driving licence (Q. 104) but that the driving licence was at his native place (Q. 105). He was asked to produce his driving licence by the following week (Q.107). He has not produced it till today. The evidence of the purchaser is not at all in keeping with the conduct of a person who had genuinely purchased a vehicle at all. The truth of the matter appears to be that Lakbir Singh was an agent known to the firm and he has been pressed into service by the firm to support the firm's case of the alleged sale. 39. The purchaser said that the vehicle is in his possession (Q.95). Yet his father Darsan Singh with whom he resides had no knowledge about the whereabouts of the vehicle (Q.11). According to Abdul Rashid, the vehicle is in the firm's possession (Q-36). 40. Apart from the unsatisfactory nature of the evidence relating to the alleged sale is the further evidence given by the Hirers' Advocates Clerk, Sk. Alamgir. Sk. Alamgir said that he had been to premises 130/1 B.T. Road, Calcutta for effecting service on Lakbir Singh. But Lakbir Singh stated that he knew nothing about the matter (S. A./ Qs. 4-6). Sk. Alamgir confirmed the statements made by him in the affidavit of service filed in these proceedings (SA Q-17). In paragraph 3 of the Affidavit of service Sk. But Lakbir Singh stated that he knew nothing about the matter (S. A./ Qs. 4-6). Sk. Alamgir confirmed the statements made by him in the affidavit of service filed in these proceedings (SA Q-17). In paragraph 3 of the Affidavit of service Sk. Alamgir has said: "That on 26th November 1994 I went to the address of Sri Lakbir Singh at 130/1, B.T. Road, Calcutta 700035 and I met the addressee and told him the purpose of my visit and I showed him the notice alongwith the copy of the said order dated 24th November, 1994 and a copy of the application. Sri Lakbir Singh became surprised and told me that he has not purchased any vehicle of that description from anyone and he has not taken any part in any sale proceeding by any Receiver and as far as the vehicle was concerned he was totally ignorant and as such refused to take the notice". 41. Significantly the firm's Advocate declined to cross-examine Sk. Alamgir. Although he was cross-examined by the advocate of Lakbir Singh. Sk. Alamgir's testimony was consistent and unshaken (Q. 77) and the evidence of Sk. Almagir that Lakbir Singh had refused service is corroborated by Lakbir Singh's admission that he executed a Vakalatnama in favour of his advocate on 26/27th November, 1994 (LS Q-94). What else could have prompted him to visit the office of an Advocate on that date? Strangely enough Lakbir Singh's advocate sat tight over the matter and did not represent his client's cause on 1.12.94 or 5.12.94 when the matter was taken up and appeared only on 6.12.94 when Lakbir Singh's father appeared. I am therefore of the view that the firm has failed to establish the fact of sale of the vehicle. 42. As far as documentary evidence produced by the firm on the issue is concerned. Ex. D is the power of Attorney stated to have been executed on 3rd February 1994 by the Receiver appointing Shiv Shankar Sah as his agent, inter alia, to assist him in taking possession of the vehicle. Although the Receiver in examination in Chief said he had executed the power of Attorney in favour of his agent (Qs. 20-24), in cross-examination he did not seem to rememeber the same (Qs. 47-48(2)). The second document is a letter dated 24th March 1994 (Ex. Although the Receiver in examination in Chief said he had executed the power of Attorney in favour of his agent (Qs. 20-24), in cross-examination he did not seem to rememeber the same (Qs. 47-48(2)). The second document is a letter dated 24th March 1994 (Ex. "E") signed by Shiv Shankar Sah and addressed to the Receiver to the effect that he had taken possession of the vehicle on 24th March 1994 which was lying at Chandpura Out Post, Dist. Vaisali. Ex. “F” is a letter signed by the Manager of the Firm addressed to the Receiver which merely informed the Receiver that the Hirer had violated the terms of settlement. No particulars were given in the letter as to the nature of such violation. Ex. "G" is the alleged minutes of the meeting at which the alleged sale had taken place as well as the bid sheet. The evidence regarding the preparation of the minutes and bid sheet as already seen, is unacceptable. The fact of the sale having been rejected by this Court, the purported minutes cannot be relied upon. There is no independent evidence to show that the documents were prepared when the Receiver says they were and I have already held that the Receiver was an unreliable and interested with-ness. The original receipts of payment allegedly made by Lakbir Singh (Ex. "H") were, strangely enough, produced by the Receiver (Q.92). Ex. "I" is a letter written by the Receiver to the Registering Authority, Ex "J" are statutory forms relating to the transfer of ownership of there motor vehicle signed by the Receiver. As already noted the originals were not produced by the purchaser nor any receipted copy to show that the documents were received either by the purchaser or by the Registering Authority. As already seen the evidence of the Receiver and Lakbir Singh as to the date of receipt of the documents conflict. Ex. "K" has been termed as a cash book but in fact, it is computer print out. Having regard to the way in which data can be fed into a computer at any stage no evidentiary value can be attached to such a "Cash Book". In any event the contents of the "Cash Book" have not been proved. The Receiver has merely identified the person who has signed the document (D.P.G.Os. 1 to 9(2)). Having regard to the way in which data can be fed into a computer at any stage no evidentiary value can be attached to such a "Cash Book". In any event the contents of the "Cash Book" have not been proved. The Receiver has merely identified the person who has signed the document (D.P.G.Os. 1 to 9(2)). No explaination has been given as to why the accountant of the firm who is stated to have signed the "cash book" did not come forward to give evidence. 43. In fact, none of the persons who were directly involved either in taking possession of the vehicle viz. the agent, or in the receipt of the alleged purchased price viz. the manager of the firm or the cashier/Accountant have been called by the firm to give evidence. They were all the employees of the firm. It is not the firm's case that they were unavailable. An adverse inference may be drawn against the firm under s. 114(g) of the Evidence Act. 44. There is no third party independent evidence to show that any of the event stated to have taken place by the Receiver did in fact occur. Each of the documents produced in support of the alleged sale could have been prepared subsequently. The unsatisfactory nature of the oral testimony given by the Receiver and the purchaser and the unexplained absence of the persons directly involved would tend to support such an inference. 45. The terms of settlement provide for the sale of the vehicle after the seizure without any further order of Court by private treaty or by public auction. After deducting all expenses, the firm was to be paid the amounts remaining due and the balance, if any, to the hirer. The hirer therefore would be vitally affected by the sale. It would be in consonance with the principles of natural justice and fair play which the Receiver, as an Officer of Court should have observed, for notice to be given to the hirer before effecting the sale. In any event it can be said to be a rule of prudence so that the Receiver may not lay himself open to charges of misconduct. 46. That apart, normally under Or. In any event it can be said to be a rule of prudence so that the Receiver may not lay himself open to charges of misconduct. 46. That apart, normally under Or. XXI Rule 22 of the Code of Civil Procedure when a decree is sought to be executed two years after the date of the decree a notice is required to be given to the person against whom execution is applied for requiring him to show cause on a date to be fixed why the decree should not be executed against him. Although the provisions of Order XXI Rule 22 may not in terms apply, nevertheless, the Rule embodies a salutory principle of equity. In this case the alleged sale of the vehicle was made by the Receiver on 16th April, 1994, more than 2 years after the order dated 2nd March, 1992. 47. It may be true that the terms of settlement did not provide for notice to be given to the hirer but the Courts have, even when construing a statute, read in the requirement of natural justice unless the same was expressly negatived (C. B. Gautam vs. Union of India, 199 ITR 530) when an authority which would include an Officer of Court, is involved. 48. Though the absence of such notice may bot render the sale of the vehicle illegal, it would at least render the transaction open to suspicion that no sale in fact had taken place-a suspicion in this case which appears to be well founded. Re.2 49. The next question is whether circumstances exist justifying the Court in extending the time for the hirer to make payment of the arrear instalments under the consent order. In Deepchand Mini vs. Tikam Chand Mini (supra) the Court will have to see whether time was of the essence of the contract between the parties on the basis of which the order dated 2nd March, 1992 was passed. 50. On a construction of the terms of settlement it would appear that default in making payment would result in 3 consequences, namely; (i) Payment of interest from the date of default until payment, (ii) where there are two defaults the entire outstanding would become payable, and (iii) the firm would take possession of the vehicle. The provision for payment of interest suggests that was time not of the essence of the contract. 51. The provision for payment of interest suggests that was time not of the essence of the contract. 51. Furthermore, the conduct of the parties shows that they did not treat time as the essence of the contract. The instalments were payable on or before the 25th of every calendar month starting with 25th March, 1992. The hirer admittedly made payment of 8 instalments of which the first, third, 4th, 5th, 6th 7th and 8th were paid well beyond the due date. Nevertheless, the payments were accepted by the firm and no action was taken for seizing the vehicle by reason of such delayed payment. The firm also did not made any demand from the hirer relating to the defaults in making payment nor threatening action under the terms of settlement. The last instalment was paid by the hirer, according to the chart annexed to the affidavit of the Receiver, on 11th December, 1993. It was only on 21st March, 1994 that the Manager of the firm for the first time wrote to the Receiver stating that the hirer had violated the terms of settlement (Ex. F). 52. Abdul Rashid has given un-contradicted evidence that when the terms of settlement were filed he was not represented by a Lawyer (Abdul Rashid Q-20 to 22 and Q-120). Neither of the hirers know English (Abdul Rashid Q-27, Q-64, 84, 85 and 101). Even the original hire purchase agreement which has been produced in the Court by the firm bears the signature of Abdul Rashid in Hindi. Abdul Rashid was shown this present petition without the contents being explained. He rejected it as false (Abdul Rashid Q-55-59). This shows the depth of his ignorance and his not, as submitted by the firm, an admission that he had no case. The signature of the second hirer Md. Aftab Alam is in English but it is clear from his handwriting that the man is not literate at least in the English language. There is nothing in the terms of settlement which shows that the terms were read over and explained to either of the hirers in a language they could understand. It is clear from the evidence of Abdul Rashid that he did not know the contents of the clauses of the Terms of Settlement which he has repeatedly referred to only as "the paper" (Q-118-120 and 120-122). It is clear from the evidence of Abdul Rashid that he did not know the contents of the clauses of the Terms of Settlement which he has repeatedly referred to only as "the paper" (Q-118-120 and 120-122). It has nowhere been said by the firm that the penal clause of forfeiture without notice as contained in the Terms were explained to the hirers. 53. In my opinion, in the facts of this case the Court would be justified in following the decision in Dipchand Mini vs. Tikam Chand Mini (supra) and holding the timely payment of the instalments was not of the essence of the contract and therefore the equitable jurisdiction of this Court in the matter of granting relief against penal and forfeiture clauses and the provisions in terrorem should be exercised. And in exercise of the jurisdiction, I relieve the hirers, against those provisions by condoning the delay in payment of the arrear instalments. 54. Having held both issues in favour of the hirers there will accordingly be an order in terms of prayer (a). The Receiver will forthwith take possession of the vehicle and will keep the same in his custody until the hirers made payment of the balance dues of the firm within such period as this Court will determine. It is made clear that the Receiver shall act with the fairness, objectivity and rectitude that is expected of an Officer of Court. As there is a dispute relating to the amounts due. Let the matter appear on 16th November, 1995 marked "for orders" to determine the amount and the date of payment. The hirers will in any event be entitled to the cost of this application including the Trial on Evidence assessed at 150gms. Such cost will be adjusted by the firm towards its claim against the hirers. 55. All parties to act on a signed copy of the minutes of this order on usual undertaking. 56. Stay of operation of the order is prayed for by the purchaser and is refused on the ground that the Court has directed that the Receiver should take possession of the vehicle and retain possession of the same. It is clear from the facts already stated that the purchaser have not plied the vehicle till date and the vehicle has not even been registered in his name permitting him to ply the vehicle. 57. It is clear from the facts already stated that the purchaser have not plied the vehicle till date and the vehicle has not even been registered in his name permitting him to ply the vehicle. 57. The prayer is refused accordingly. 58. All parties are to act on a signed copy of this judgment on the usual undertaking. Order in terms of prayer (a). Stay refused.