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Delhi High Court
M/S. Goodwill India Ltd. vs M/S. Elizabeth Thomas And Another on 1 January, 1800
Author: L Prasad
Bench: L Prasad


JUDGMENT

Lokeshwar Prasad, J.

1. M/s. Goodwill India Ltd., a Company incorporate under the provisions of the Indian Companies Act, 1913 (hereinafter referred to as ‘the petitioner’) has filed the present petition under Section 20 of the Arbitration Act, 1940 (hereinafter referred to as ‘the Act’), praying that Hire Purchase Agreement dated the 29th September, 1989, containing the arbitration clause, be directed to be filed in the court and the disputes mentioned in the petition be referred for decision to the named arbitrator Sh. Raj Pal Sagar, Advocate, Delhi.

2. It is averred that the petitioner company hired out a motor vehicle, bearing Engine No. 692.D03.1.55285, Chassis No. 344.050.1.147795, Registered No. KEF 5083 to one Shri V. A. Thomas under the ‘Hire Purchase Agreement’ dated the 22nd January, 1986. The said agreement was for a total sum of Rs. 2,60,000/- which was payable in 48 monthly installments w.e.f. 1st March, 1986, on the guarantee of Shri T. T. Cynac. It is alleged that after making some of the payments said Shri V. A. Thomas expire on 17.1.1988 leaving behind his widow, respondent No. 1.

3. It is alleged that the above said vehicle was held by late Shri V. A. Thomas under the above said ‘Hire Purchase Agreement’ and the factum of the same was recorded with the Registering Authority, Ernakulam with the endorsement of he petitioner Company being the finance and the vehicle being held under ‘Hire Purchase Agreement’ with the petitioner Company.

4. It is also alleged that on account of the death of said Sh. V. A. Thomas, respondent No. 1, approached the petitioner and executed an Agreement dated the 29th September, 1989 (Annexure B, wherein respondent No. 1 acknowledged that the said vehicle was held by her late husband Sh. V. A. Thomas and at the time of his death an amount of Rs. 2,04,316/- was due and payable to the petitioner Company under the above said Hire Purchase Agreement dated the 28th January, 1986. It is alleged that respondent No. 1 also acknowledged that the Registering Authority had refused to renew the permit and also refused to transfer the vehicle and register the same in her name. She further acknowledged that she was ready and willing, to make the payment to the petitioner and the petitioner Company should transfer all the liabilities due as on the date of the death of her husband Sh. V. A. Thomas in her name and executed a fresh ‘Hire Purchase Agreement’ so as to get the vehicle of the permit transferred in her name with the Registering Authority. It is alleged that respondent No. 1 on 5th September, 1989 also made a payment of Rs. 30,000/- and further agreed to pay the balance amount, amounting to Rs. 1,21,146/- to the petitioner Company.

5. A fresh ‘Hire Purchase Agreement’ dated the 29th September, 1989 was executed and at the time of the execution of the above said ‘Hire Purchase Agreement’ the hire amount in arrears was Rs. 25,650/- and all told a sum of Rs. 1,21,146/- was payable by respondent No. 1 under the above said ‘Hire Purchase Agreement’ to the petitioner Company which also included the hire amount if arrears, overdue hire money and compensation charges.

6. It is alleged that thereafter the vehicle was transferred in the name of respondent No. 1 by the petitioner Company and the same was got registered with the Registering Authority, Ernakulam (Kerala) and respondent No. 1 was given necessary papers.

7. It is alleged that in the said Agreement dated the 29th September, 1989 respondent No. 1 undertook to pay the total amount within next five months by depositing substantial amount every month alongwith further compensation charges that may be found due according to the terms and conditions of the agreement. Respondent No. 1 also confirmed and agreed that all terms and conditions of the Hire Purchase Agreement signed by her late husband Shri V. A. Thamas would also be binding on her. She also produce Mr. V. T. Antony, (respondent No. 2) as her guarantor. She also agreed for the arbitration clause contained in the earlier Hire Purchase Agreement dated the 22nd January, 1986 executed with Mr. V. A. Thomas and the subsequent Hire Purchase Agreement dated the 29th September, 1989 executed by her. He also agreed for the named arbitration of Sh. Raj Pal Sagar, Advocate, Delhi and in his absence Shri Inderjit Gulati, Advocate, Delhi.

8. It is alleged that after entering into the said ‘Hire Purchase Agreement’ and executed the agreement dated 29th September, 1989, respondent No. 1, made some payments but thereafter made defaults in payment of hire installments. Notices dated 31st August, 1988, 20th December, 1988, 8th May, 1990 and 17th October, 1990 were issued to the respondents but the respondents refused and neglected to make the payment. It is alleged that on the day of the filing of the present petition a sum of Rs. 1,22,740/- is due and payable towards the over due hire money and compensation charges for late payment by the respondents to the petitioner Company. It is alleged that the petitioner Company contacted the respondent through their Filed Inspector Sh. V. K. Abdul Qadar who contacted respondent No. 1 and asked her to make the payment in terms of the Agreement and also to produce the vehicle in question for physical inspection but the respondents disputed their liability, refused to make payment and also refused to produce the vehicle for physical inspection. It is alleged that the petitioner Company also served notices on the respondents requesting them to comply with the terms and conditions of the said Agreement and also apprising them that the heavy over due hire money and compensation charges for late payment but the respondents failed to comply with the same.

9. It is alleged that on account of default and breaches committed by the respondents, the following disputes and differences have arisen between the parties out of the said Hire Purchase Agreement which are with the ambit of arbitration clause mentioned in the said agreement and are referable to the named arbitrator :

 
   (i)   Recovery of ever due hire money and stock  Rs.   80,900.00 
(ii) Recovery of compensation charges for late
            payment                                          Rs.   41,840.00 
(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. 1,50,000.00 
(iv) Recovery of double the amount of average
       monthly hire as provided in Schedule B the
       said Agreement during the period the
       respondents remain in adverse possession of
       the vehicle from the date of expiry of the
       period of hire installment                      Rs. 1,09,000.00 
 
 
 

10. It is alleged that as the ‘Hire Purchase Agreement’ was duly accepted and completed at the registered office of the petitioner at New Delhi and in terms of the said agreement all terms and conditions are to be observed and performed at New Delhi and the respondents have also agreed under the said agreement that for the purpose of all legal action, proceedings and/or arbitration, Delhi Courts alone shall have exclusive jurisdiction in respect of the disputes and differences arising out of the said ‘Hire Purchase Agreement’ this Court has jurisdiction to entertain the present petition.

11. It is prayed by the petitioner that the Hire Purchase Agreement dated the 29th September, 1989, containing the arbitration clause, be directed to be filed in the court and the disputes/differences arising out of and in connection with the said agreement, be referred to the sole arbitrator of Sh. Raj Pal Sagar, Advocate, Delhi and said Sh. Raj Pal Sagar, Advocate, Delhi be directed to make his award.

12. Since the respondent did not appear without any reasonable cause, they were directed to be proceeded ex parte in the present proceedings vide order dated 16th April, 1996.

13. The petitioner in support of its case has adduced evidence by means of affidavit and has filed the affidavit of Sh. R. N. Gupta, Managing Director of the petitioner Company. Sh. R. N. Gupta, the Managing Director of the petitioner Company, in his affidavit, filed by way of evidence, has fully supported the case of the petitioner Company and has proved and exhibited all the material documents including the Hire Purchase Agreement containing the arbitration clause. The evidence of Sh. R. N. Gupta, adduced by means of affidavit, has gone on record unrebutted and unchallenged which I see no reason to disbelieve.

14. From the ex parte evidence, adduced by the petitioner Company by way of affidavit of Sh. R. N. Gupta the Managing Director of the petitioner Company which I see no reason to disbelieve, the case of the petitioner Company, in my opinion, stands duly proved. I, consequently direct that the arbitration agreement dated the 29th September, 1989 be filed in the court and refer the disputes mentioned in the petitioner to Sh. Raj Pal Sagar, Advocate, Delhi as the sole arbitrator for decision. The order is ex parte.


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