ORDER
C.M. Nayar, J.
I.A.No. 1535/93
1. The present application has been filed under Section 41 of the Arbitration Act read with Schedule II and Order 40 Rule 1 and Section 151 CPC for appointment of Shri Rakesh Jain, Field Inspector of the petitioner company as Receiver to take possession of the Vehicle bearing Engine No. 697 Turbo. 02.7.16076 Chassis No. 516.002.7.16057 and Registered No. HRU 591. The petitioner has stated in paragraph 7 of the main petition the following amounts which are due from the respondents under each head:-
"i) Recovery of over due hire money Rs.23,200.00
ii) Compensation charges for late payment upto
the date of filing of the present petition. Rs.87,815.00
iii) 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.3,00,000.00
iv) Recovery of double the amount of average
monthly hire as provided in Schedule B to the
aid agreement during the period the respondents
remains in adverse possession of the vehicle
from the date of expiry of the period of hire
instalments i.e. from 23.11.81 till the respondent
surrender the said vehicle as provided in the
Hire Purchase Agreement Rs.2,03,800.00
v) Further payment of compensation charges
in terms of the agreement on the amount
of the arrears of hire money not paid
after the date of filing of the present
proceedings till the date of payment."
2. The learned counsel contends that the vehicle at present is in possession of respondent No.3 and the Receiver may be permitted to repossess the same. Taking into consideration the facts as well as the amount due from the respondents, Shri Rakesh Jain, Field Inspector of the petitioner company is hereby appointed as the Receiver to take possession of the vehicle and keep the same in his custody subject to further order as may be passed by the Arbitrator. The petitioner shall be at liberty to take the police assistance in case it is deemed necessary. This application is allowed in the above terms.
S.No. 335/93
3. The present petition is filed under Section 20 of the Indian Arbitration Act, 1940 for filing the Arbitration Agreement dated June 12, 1980 in Court and for an order for reference of the disputes which have arisen between the parties to the named Arbitrator therein Shri Chander Mohan Oberoi, Advocate, Delhi.
4. The petitioner is a company incorporated under the Indian Companies Act, 1913 and has its registered office at Harsha Bhavan, E-13/29, Connaught Place, New Delhi-110001. It carries on the business of hire purchase of motor vehicles. It is further stated that Shri R.N.Gupta is the Managing Director of the petitioner company and is duly authorized to sign and verify the pleadings and to institute the suit.
5. The petitioner company purchased a new chassis bearing Engine No. 697 Turbo 02.716076 Chassis No.516.002.16507 from M/s Jaika Automobiles Pvt. Ltd. vide their invoice No.760/PN dated 12.6.1980 valued for Rs. 3,30,256.00 and the payment was made by the petitioner. Thereafter the petitioner entered into Hire Purchase Agreement with respondent No.1 & 2 as the Joint hires, respondent No.3 stood as the guarantor for and on behalf of respondents 1 and 2 vide Hire Purchase Agreement dated 12.6.1980 on the terms and conditions mentioned therein. The said agreement was entered into for a total sum of Rs.3,74,056/- which included chassis value Rs.3,30,256/- hire charges for 17 months, Rs.38,400/- insurance charges for 2nd year, Rs.5400/- making it a total sum of Rs.3,74,056/-. At the time of entering into the said Hire Purchase Agreement dated 12.6.1980 respondents 1 and 2 paid a sum of Rs.1,70,256/- as initial payment leaving a balance of Rs.2,03,800/- to be paid in 17 monthly hire installments w.e.f. 23.7.1980 as per Schedule B to the said agreement, at the rate of first 10 installments of Rs.11,700/- each and the 11th installment being of Rs.17,100/- 12th to 16th installment of Rs.11,700/- each balance one installment of Rs.11,200/- besides the payment of compensation charges for late payment of hire installments and other incidental expenses for insurance and other expenses as per terms and conditions of the said Hire Purchase Agreement. Respondent No.3 signed the said Hire Purchase Agreement as guarantor for and on behalf of respondents 1 and 2 and his liability is co-extensive with that of respondents 1 and 2. The vehicle was registered with the Registering Authority with the endorsement that the vehicle was held under Hire Purchase Agreement with the petitioner company and allotted Regd. No.HRU 591.
6. It is alleged that the respondents after taking away the said vehicle under Hire Purchase Agreement dated 12.6.1980 failed and neglected to pay the hire installments in terms of the said agreement and a sum of Rs.23,200/- is due and payable towards over due hire money and Rs.87,815/- towards compensation charges for late payment. The petitioner consequently issued various notices to the respondents to comply with the terms and conditions of the said Hire Purchase Agreement and to make payments but they failed and neglected to do so. On failure of the respondents to pay the money the petitioner asked for settlement of the disputes by way of arbitration as admittedly the disputes had arisen between the parties and are mentioned in paragraph 7 of the petition. The arbitration clause as referred to in the Agreement reads as follows:-
“CLAUSE VI-(a). All disputes, differences, and or claims, arising out of the HIRE PURCHASE AGREEMENT shall be settled by arbitration, in accordance with the provisions of the INDIAN ARBITRATION ACT, 1940, or any statutory amendments thereof and shall be referred to the sole arbitration of Shri Chander Mohan Oberoi, Advocate Delhi or in case of his death, refusal, neglect, incapability to act as on arbitrator to the sole arbitration of Shri Inder Jit Gulati Advocate, Delhi. The reference to the Arbitrators shall be with the CLAUSES, TERMS AND CONDITIONS of this Agreement. The award given by the Arbitrator shall be final and binding on all the parties concerned.
(b) It has been expressly explained by the owner to the Hirer and to the Guarantor that either of this aforementioned Arbitrators are usually appointed by the owners in the hire purchase agreements accepted by them and inspite of the information supplied to them, the said Hirer and Guarantor have willingly agreed to the nomination of the said Arbitrator/s, and they shall not raise any objection against the appointment of any of the Arbitrator/s on the ground that the Arbitrator/s is/are connected in any manner with the owners.
(g) Any party desirous of making a reference to the Arbitrator, shall give fifteen days, Registered Act. Due Notice of his intention to do so to the other party at his usual place of business or residence, or the place of their last notified address and the notice shall be deemed to have been served when it would ordinarily have been delivered by post. The notice sent by the Arbitrator, to the Parties, by Registered Post, at the addresses mentioned in the Hire Purchase Agreement will be considered sufficient service on the Parties, whether such notice is received by them or not, or is refused, or is returned undelivered.”
7. Notice of the petition was issued to the respondents on 2nd February, 1993. Respondents 1 and 2 were duly served and respondent No.3 was served vide publication. Despite service there were no appearance on their behalf and they were, accordingly, directed to be proceeded against ex-parte vide Order dated 19th May, 1997. The affidavit by way of evidence has been filed by the petitioner on July 5, 1997.
8. I have heard learned counsel for the petitioner and perused the documents on record. The petitioner has filed copy of the Incorporation Certificate which is filed with the main petition and is marked as Ex.PW.1/1. True copy of the Power of Attorney issued by the Board of Directors in favor of Shri R.N.Gupta, Managing Director of the petitioner company which is filed with the main petition is marked as Ex.PW.1/2. A copy of the Invoice No.760/PN dated 12.6.1980 is marked as Ex.PW.1/3. The original Hire Purchase Agreement entered into between the parties is Ex.PW.1/4. The statement of account is marked as Ex.PW.1/5 and copy of the letter dated 28.6.1988 is filed as Ex.PW.1/6. The petitioner has placed on record various notices and reminders which are collectively marked as Ex.PW.1/7.
9. In view of the above facts and there being no contest by the respondents the averments made in the petition are deemed to be correct. The petition is, accordingly, allowed and the disputes which have arisen between the parties as referred in paragraph 7 of the petition are hereby referred to the arbitration of Shri Chander Mohan Oberoi, Advocate in the manner as provided in clause VI of the Agreement. The Arbitrator shall render his Award within the statutory period. There will be no order as to costs.