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2013 DIGILAW 1611 (MAD)

Sri Velmurugan Investment Karur v. N. R. T. Tours

2013-04-10

VINOD K.SHARMA

body2013
Judgment :- Vinod K. Sharma, J. 1. This order shall dispose of A.No.4577 and 5108 of 2012, as the common question of law and facts and are involved in both applications. 2. This application under Order XIV Rule 8 of O.S. Rules read with sec.9(ii)(b) & (e) of Arbitration and Conciliation Act, 1996 has been filed to appoint an Advocate Commissioner to seize and deliver the vehicle to the applicant described in the schedule to the Judges summons, lying in the custody of respondent's premises with liberty to sell and to permit the Advocate Commissioner to obtain police aid and to break open the premises. 3. This application under Order XIV Rule 8 of O.S. Rules read with sec.9 of Arbitration and Conciliation Act, 1996 has been filed to set aside the order passed by this Court on 15.10.2012 in A.No.4577 of 2012. 4. It is pleaded case of the applicant/Finance Company that the respondent had approached the applicant with a request to extend higher purchase finance facility and the request was accepted and the parties entered into Higher Purchase agreement, dated 2.3.2006. Under the agreement, the total hire money of Rs.9,73,050/- (Rupees nine lakhs seventy three thousand and fifty only) was repayable in 30 equated monthly instalments of Rs.32,435/- (Rupees thirty two thousand four hundred and thirty five only). The first instalment commenced on 2.4.2006 with the last instalment ending on 2.9.2008. The Higher purchase transaction was duly recorded in registration certificate. 5. It is pleaded case of the applicant/Finance company that the last payment was made on 4.6.2009 towards 23rd instalment and no payment was made thereafter. The respondent in order to settle the dues under the Hire Purchase agreement, had issued a cheque, dated 3.6.2009, drawn on H.D.F.C. Bank, for a sum of Rs.32,43,500/- (Rupees thirty two lakhs forty three thousand and five hundred only) towards settlement of the amount due to the applicant. But the cheque was dishonoured with an endorsement "Account closed". The applicant thereafter issued a legal notice, dated 23.9.2011 and filed a criminal complaint under section 138 of Negotiable Instrument Act, in the Court of learned Judicial Magistrate No.I, Karur. The respondent is liable to pay a sum of Rs.4,05,796/- (Rupees four lakhs five thousand seven hundred and ninety six only) under the Higher Purchase agreement. 6. The applicant thereafter issued a legal notice, dated 23.9.2011 and filed a criminal complaint under section 138 of Negotiable Instrument Act, in the Court of learned Judicial Magistrate No.I, Karur. The respondent is liable to pay a sum of Rs.4,05,796/- (Rupees four lakhs five thousand seven hundred and ninety six only) under the Higher Purchase agreement. 6. The case of the applicant/Finance company is that the applicant had filed A.No.1195 of 2012 in this Court to direct the respondent to furnish security for the amount due under the contract and in the event of failure to give security, to pass an order of attachment of the immovable property of the second respondent. 7. This Court directed the respondent to furnish security for the amount due under the contract, but the respondent did not appear before this Court nor furnished security and therefore, this Court ordered attachment of immovable property of the respondents. 8. It is submitted that now it is revealed that the second respondent owns property jointly with his wife therefore, the property cannot be sold in enforcement of the award likely to be passed by the Arbitrator and therefore, claim of the applicant is still unsecure. 9. This application on the face of it, is misconceived and not competent. Once it is admitted case of the applicant, that on the application filed by the applicant, this Court has already ordered attachment of the property of the respondents, the second application for interim relief is not competent. 10. It is misconception of the applicant that the joint property cannot be sold, as the share of husband out of attached property can always be sold to recover the awarded amount. This application therefore, is nothing but misuse of process of Court. 11. It may further noticed here that inspite of the fact that there is an interim order passed in favour of the applicant, it is not disclosed in the affidavit, the status of the arbitration proceedings. The application therefore cannot be said to be bonafide, but merely an attempt to pressurise the respondent with some ulterior motive. 12. Consequently, A.No.4577 of 2012 is ordered to be dismissed with cost which are assessed at Rs.20,000/- (Rupees twenty thousand only). 13. In view of the final order passed in A.No.4577 of 2012, A.No.5108 of 2012 has been rendered infructuous and disposed of accordingly. No costs.