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2000 DIGILAW 1344 (MP)

BHARAT KUMAR SHARMA v. ASHOK LEYLAND FINANCE LTD

2000-12-15

V.K.AGRAWAL

body2000
V. K. AGRAWAL, J. ( 1 ) THIS revision is directed against the order dated 10. 11. 2000, in civil Suit No. 1-A/2000, by First Additional Civil judge, Class-1, Murwara (Kami), whereby the application of the plaintiff/ petitioner under section 151 of C. PC. , copy of which is annexure A/3 was dismissed. ( 2 ) THE plaintiff/petitioner in his plaint averred that he had taken a loan of Rs. 3,68,000/- from the defendant/non-applicant for purchase of a bus chasis. The loan as above was granted by the defendant/non-applicant to the plaintiff/petitioner on hire-purchase agreement. After the defendant purchased the chassis of the bus, the body thereon was constructed and he was plying the said bus. It was further averred that on 4. 9. 1997 the defendant/non applicant had taken forcible possession the said bus. The defendant/npn-applicant thereafter released the bus to the plaintiff/petitioner on the defendant/ non-applicant depositing sum of Rs. 70. 200/- with him On 28. 2. 1998 the defendant/non-applicant got prepared a document of refinancing of a sum of Rs. 1,91,000/- 'it was also averred that rs. 5,00,000/- have been paid by the plaintiff/ petitioner to the defendant/non-applicant towards loan obtained by him under the hire-purchase agreement. The defendant/non-applicant, however, raised demand for a sum which was not due. He has prayed for a relief that agreement dated 28. 2. 1998 be declared as having been obtained by fraud and not binding on the plaintiff/petitioner It was also prayed that the defendant/non-applicant be restrained from alienating the said bus and to return the same to the plaintiff/petitioner ( 3 ) DURING the pendency of the suit. an application, copy of which is Annexure A/2, was filed in the Trial Court by the parties in which it was stated that in case the plaintiff/ petitioner is ready to furnish a Bank Guarantee of Rs. 2,28,000/ -. upon which the bus shall be returned to him, and it was further stipulated therein that the plaintiff/petitioner shall repay the amount of Rs. 2,28,000/-within three months of the said agreement, failing which the defendant/non-applicant will be entitled to take back the possession of the said bus. It was also stipulated that within the above period the parties shall also settle accounts by mutual consent, regarding above amount of Rs. 2,28,000/ -. 2,28,000/-within three months of the said agreement, failing which the defendant/non-applicant will be entitled to take back the possession of the said bus. It was also stipulated that within the above period the parties shall also settle accounts by mutual consent, regarding above amount of Rs. 2,28,000/ -. It was prayed in the said application that the application for temporary injunction may be disposed of in accordance with the above agreement between the parties. ( 4 ) IT is not in dispute that in pursuance of the above agreement the Bank Guarantee 2,28,000/- was furnished by the plaintiff/ petitioner. It is also not in dispute that Rs 48,000/- have been paid out of the amount of Rs. 2,28,000/-, and that balance 1,80,000/- remains to be paid. ( 5 ) IT appears that since the term of payment of the amount of Rs. 2,28,000/- was not complied with and only Rs. 48. 000/- were repaid by the plaintiff/petitioner, the defendant/non-applicant is intending to encash the bank Guarantee. The plaintiff/petitioner filed an application (Annx. A/3), praying that the defendant/non-applicant be restrained from encashing the Bank Guarantee. ( 6 ) THE learned Trial Court by the impugned order has dismissed the prayer of the plaintiff/ petitioner made by his application (Annx. A/3) and the defendant/non-applicant was permitted to encash the Bank Guarantee and to receive amount of Rs. 1,80,000/ -. ( 7 ) THE learned Counsel for the petitioner submitted that the defendant/non-applicant has been acting in a high handed manner. It has been submitted that though the hire-purchase initial agreement between the parties stipulated payment of Rs. 3,68,000/- including interest, and though the plaintiff/petitioner has paid a much larger sum till date to the defendant/non-applicant yet the latter had forced him to sign on the agreement of refinancing and despite payment of further sum by the plaintiff, the Bank Guarantee furnished by the plaintiff/petitioner is sought to be encashed. It has been submitted that the agreement of refinancing was on highly inequitable terms and was hit by the provision of "usurious Loans Act'. It has, therefore, been submitted that his prayer that the defendant/non-applicant be restrained from encashing the bank Guarantee should have been allowed. ( 8 ) AS against this, the learned counsel for the defendant/non-applicant submitted that as per agreement (Annx. It has, therefore, been submitted that his prayer that the defendant/non-applicant be restrained from encashing the bank Guarantee should have been allowed. ( 8 ) AS against this, the learned counsel for the defendant/non-applicant submitted that as per agreement (Annx. A/2), admittedly entered into by the parties, the defendants/non-applicant was entitled to encash the bank guarantee in case the amount of Rs. 2,28,000/- was not paid within three months. It has been submitted that there is no dispute that the plaintiff/petitioner had not complied with the said term of payment of Rs. 2,28,000/- within three months, and, therefore, the defendant/ non-applicant was entitled to encash the bank guarantee to the extent of the balance of the amount of Rs. 1,80,000/- ( 9 ) IN the above context, the learned counsel for the defandent/non-applicant has drawn my attention to the order of the trial court copy of which is Annx. D/5, wherein it was specifically ordered that as per the above agreement between the parties, the bus was handed over to the petitioner. However, since the plaintiff/ petitioner has failed to comply with the term, the defendant/non-applicant was as per agreement between the parties, entitled to receive back the balance amount from the Bank Guarantee. The learned counsel for the counsel non-applicant has also submitted that encashment of the bank guarantee cannot be restrained even if a dispute was raised by the petitioner. as has been laid down in U. P. State Sugar corporation v. Sumac International Ltd ' ( 10 ) IT is clear that the Bank Guarantee was furnished by the petitioner in pursuance of the compromise as per Annx. A/2 which stipulated that the amount of Rs. 2,28,oooa would be paid within three months. The petitioner admittedly has failed to comply with the said term and has not repaid the amount of rs. 2,28,000/ -. In the above context the learned counsel for the petitioner has placed reliance on Clause (5) of the said agreement (Annx. A/2) which stipulates that the parties will. settle the accounts regarding the above amount of Rs. 2,28,000/- by mutual understanding. It has been submitted that the said account has never been settled by the defendant. ( 11 ) HOWEVER, there appears nothing to show that plaintiff/petitioner called upon the defendant/non-applicant to do so. Moreover, the matter or mutual settlement as stipulated by by Annx. A/2 can still be pursued. 2,28,000/- by mutual understanding. It has been submitted that the said account has never been settled by the defendant. ( 11 ) HOWEVER, there appears nothing to show that plaintiff/petitioner called upon the defendant/non-applicant to do so. Moreover, the matter or mutual settlement as stipulated by by Annx. A/2 can still be pursued. It is also to be noted that the above application (Annx. A/2) was filed in connection with the disposal of the application of temporary injunction filed by the plaintiff/petitioner, and he had specifically agreed to pay the sum of Rs. 2,28,000/- to the defendant/non-applicant. ( 12 ) THEREFORE, firstly the agreement as above was of interim nature regarding the prayer of temporary injunction made by the plaintiff/petitioner and that the Bank Guarantee having been furnished in pursuance thereof, the plaintiff/petitioner was obliged to comply with the other terms viz. the payment of the above amount within three months as stipulated therein, he has failed to do so In the circumstances, his prayer that the defendant/ non-applicant be restrained from encashing the bank Guarantee to the extent of balance of the amount payable by him, do not deserve to be accepted, The same was rightly rejected by the impugned order ( 13 ) IN view of the above, no interference in the impugned order, therefore, is called for this revision stands accordingly dismissed revision dismissed. .