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1997 DIGILAW 915 (DEL)

M. G. F. INDIA LIMITED v. SATISH GROVER

1997-11-12

LOKESHWAR PRASAD

body1997
Lokeshwar Prasad, J. ( 1 ) THE petitioner, name above, has filed the present petition under Section 20 of the Arbitration Act, 1940 ( hereinafter referred to as the `the Act ), averring that the petitioner is a Public Limited Company, duly incorporated under the provisions of the Companies Act 1913, having its Registered Office at 17- B, Asaf Ali Road, New Delhi and Shri Rajiv Gupta, Director-in-Charge and Constituted Attorney of the petitioner company is duly authorised to sign and verify the present petition and to institute the present proceedings on behalf of the petitioner company. ( 2 ) IT is averred that the petitioner company is carrying on the business of hire purchase of motor vehicles at its Registered Office, situated at 17-B, Asaf Ali Road, New Delhi. It is further stated that the petitioner, in due course of its business purchased one Maruti Car (Deluxe), bearing Engine No. 249503; Chassis No. 184866 and Registration No. DDU 814 from M/s Competent Motors, New Delhi vide the Invoice dated the 16th October, 1987 and thereafter hired out the above said car to respondent No. 1 under Hire Purchase Agreement dated the 19th October, 1987 on the terms and conditions mentioned therein. It is stated that respondent No. 1 signed the above said Agreement of Hire Purchase as hirer and respondent No. 2 signed the same as guarantor for and on behalf of respondent No. 1 and hence the liability of the respondents is joint and several. It is stated that the above said Hire Purchase Agreement was duly executed between the petitioner and the respondents at the Registered Office of the petitioner company situated at 17-B, Asaf Ali Road, New Delhi. It was agreed that all disputes/differences and/or claims arising out of the said Hire Purchase Agreement shall be referred to the arbitration in accordance with the provisions of the Act. It is further stated that in terms of the provisions of Clause-VI (a) of the above said Agreement, the parties agreed to appoint Shri Shashi Vansh Bahadur, Advocate, Delhi as their sole arbitrator for the purpose of adjudicating the disputes/differences between the parties and in case of his death, refusal, neglect, inability or incapability to act as an arbitrator, then to the sole arbitration of Shri Inderjit Gulati, Advocate, Delhi. ( 3 ) IT is stated that the above said Hire Purchase Agreement was executed for a total sum of Rs. 1,25,520. 00 which included the price of the car at Rs. 1,12,720. 00 and the hire charges, amounting to Rs. 12,800. 00 for 12 months. At the time of the execution of the above said Agreement, respondent No. 1 paid a sum of Rs. 32,720. 00 as an initial payment, leaving a balance of Rs. 92,800. 00 to be paid in 12 monthly hires, first payment to be made on 19. 11. 1987 in the sum of Rs. 8100. 00 and the balance 11 instalments being of Rs. 7700. 00 each, as per Schedule `b annexed to the said Agreement, besides compensation charges and incidental charges which may fall due under the above said Agreement. The above said hire instalments were to be paid on 19th day of each English Calendar month. ( 4 ) IN terms of the above said Hire Purchase Agreement it was provided that in case the hirer duly performs and observes all the terms and conditions of the above said Agreement and has paid the total amount by way of hire as stipulated in Schedule B and has also paid all dues and expenses, fallen due under the Agreement, in that event the hirer shall have the option to purchase the above said vehicle and the petitioner was to make over all its rights, title and interest in the said car to the hirer and until the petitioner transfers the said vehicle to the hirer, the same shall remain the absolute property of the petitioner. ( 5 ) IT is averred that the respondents after taking away the said car under the Hire Purchase Agreement dated the 19th October, 1997 failed and neglected to pay the hire instalments in terms of the said Agreement and a total sum of Rs. 2,73,887. 00 is due towards overdue hire money and compensation charges for late payments. Besides a sum of Rs. 8,62,400. 00 is due and payable towards double the average monthly hire as provided in Schedule `b annexed to the said Agreement for the period the respondents remain in adverse possession of the vehicle in question from the date of the expiry of the period of hire instalments. Besides a sum of Rs. 8,62,400. 00 is due and payable towards double the average monthly hire as provided in Schedule `b annexed to the said Agreement for the period the respondents remain in adverse possession of the vehicle in question from the date of the expiry of the period of hire instalments. It is stated that the petitioner company contacted the respondents through Field Inspectors requesting them to comply with the terms and conditions of the Hire Purchase Agreement but the respondents refused and neglected to comply with the same. It is further stated that the petitioner has also received information through its Field Inspectors that the respondents intentions are mala-fide and they have ulterior motives to make the vehicle disappear by disposing it of and/or dismantling the same so as to cause irreparable loss and injury to the petitioner company. ( 6 ) IT is stated that on account of defaults and breaches of the above said Agreement, committed by the respondents, the following disputes/differences have arisen between the parties, which are within the ambit and scope of the arbitration clause, contained in the above said Hire Purchase Agreement, and the same are referable to the named arbitrator:- I) Recovery of over due hire money and compensation charges for late payment. Rs. 2,73,887. 00 II) Return of the vehicle in dispute in the same order and condition in which it was hired out (fair, wear and tear excepted) or in its absence its present market value. Rs. 1,50,000. 00 III) Recovery of double the amount of amount of average monthly hire as provided in Schedule B to the above said agreement during the period the respondent No. 1 remain- ed in adverse possession of the car after termination of the hiring and on the expiry of the payment of hire instalment men- tioned in the said agreement which expires on 19. 10. 88. In this account the petitioner upto the date of filing of the peti- tion is entitled to a sum of Rs. 8,62,400. 00 IV) Further payment of compensation charges in terms of the agree- ment on the amount of arrears of hire money not paid after the date of filing of the pre- sent proceedings till the date of payment. In this account the petitioner upto the date of filing of the peti- tion is entitled to a sum of Rs. 8,62,400. 00 IV) Further payment of compensation charges in terms of the agree- ment on the amount of arrears of hire money not paid after the date of filing of the pre- sent proceedings till the date of payment. ( 7 ) IT has been prayed by the petitioner that the Hire Purchase Agreement dated the 19th October, 1987, containing the Arbitration Clause be ordered to be filed in the Court and all the disputes/differences and claims arising out of and in connection with said agreement be referred to the named Arbitrator, namely Shri Shashi Vansh Bahadur, Advocate, Delhi and the said Arbitrator be directed to enter upon the reference and to give his award within the statutory period. The petitioner has also prayed for the costs of the proceedings. ( 8 ) SINCE the respondents did not appear despite service, they were directed to be proceeded ex-parte in the present proceedings by the learned Predecessor of this Court vide the order dated 24th April, 1996. ( 9 ) THE petitioner Company, in support of its case, has adduced the evidence by means of affidavit and has filed the affidavit of Shri Rajiv Gupta, Director-in-Charge and the Constituted Attorney of the petitioner company. Said Shri Rajiv Gupta, in his affidavit, filed by way of evidence, has fully supported the case of the petitioner company and has also proved and exhibited all the material/relevant documents, including the Hire Purchase Agreement dated the 19th October, 1997, containing the arbitration clause. The evidence of said Shri Rajiv Gupta, adduced by means of affidavit, has gone on record unrebutted and unchallenged which I see no reason to disbelieve. ( 10 ) FROM the ex-parte evidence, adduced by the petitioner company, by way of affidavit of Shri Rajiv Gupta, Director-in-Charge and the constituted attorney of the petitioner company, which I see no reason to disbelieve, the case of the petitioner company, in my opinion, stands amply proved. I, consequently, direct that the Hire Purchase Agreement dated the 19th October, 1987, containing the arbitration clause, be filed in the Court and refer the disputes/differences between the parties, mentioned in Para 6 of the petition, to Shri Shashi Vansh Bahadur, Advocate, Delhi as the sole arbitrator for decision. The order is exparte.