AP No. 666 of 2010
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SK. FAZAL
Versus
R.K. FINANCE LIMITED
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
Date : 8th June, 2011.
Mr. J. Banerjee, Ms. T. Ghosh...for petitioner.
Mr.M. Bose...for respondent.
The Court : This is an application by the hirer.
The relief that the petitioner seeks in this application is that the Court should
pass suitable orders restraining the financier from taking possession of the commercial
vehicle, which is being used by the petitioner under a hire purchase agreement with the
financier.
On 22nd December, 2010 when this application was moved, the learned counsel
for the financier assured the Court that till consideration of this matter by the Court on
11th January, 2011, his client would not take any step with regard to the vehicle.
Nothing happened till 19th May, 2011. On that day, when this application came
up for hearing, the learned counsel for the financier represented that no hire had been
paid by the petitioner and that he was not bound by his assurance. In those
circumstances, I made an order on the same day stipulating that the assurance of the
2
learned counsel would only be honoured if a sum of Rs.1 lac was paid by the petitioner
by 31st May, 2011.
Admittedly, this sum of Rs. 1 lac has been paid.
There are substantial disputes between the parties as to the amount of each
monthly instalment and also as to the total amount due as of date.
It appears from their submission that initially a commercial vehicle was let on hire
by the financier to the petitioner. That vehicle went missing and a second vehicle was let
out. According to the learned counsel for the financier the amount payable in each
monthly instalment was revised by agreement of the parties to Rs.49,000/- whereas,
according to Mr. Banerjee for the petitioner the amount should be only Rs.23,000/-.
According to Mr. Bose, learned counsel for the financier the revised instalment took into
account the instalment amount payable for both the vehicles. Mr. Bose also states that
the amount due as of date is about Rs.5.5 lacs without taking into account future
instalment amounts which is also disputed by Mr. Banerjee.
This Court, in my opinion, cannot go into the intricacies of calculation in a hire
purchase matter. That should be left to the Arbitrator.
As there is a provision in the arbitration agreement, for the financier to appoint an
Arbitrator, I direct that steps be taken expeditiously in this behalf so that the award can
be made and published by 31st December, 2011.
I think the ends of justice will be sub-served if till publication of the award some
amount, prima facie, due as of now is paid by the petitioner together with monthly hire
prima facie assessed by the Court.
Accordingly, I direct the petitioner to pay a sum of Rs.2.5 lacs in two equal
instalments, one by 31st July, 2011 and the other by 15th September, 2011. The
petitioner will also make payment of hire for use of the vehicle from the month of June,
3
2011 at the rate of Rs.30,000/- per month to be paid by the 7th day of the succeeding
month, that is to say, the hire for the month of June has to be paid by 7th July, 2011.
The above payments will be without prejudice to the rights and contentions of the
parties. In that event the financier will take no steps for possession of the vehicle,
without the leave of Court.
In default of payment of any amount in accordance with the stipulation above, the
financier will be at liberty to take such steps as may be available to them in law.
This application is, accordingly, disposed of.
All parties concerned are to act on a signed photocopy of this order on the usual
undertakings.
(I. P. MUKERJI, J.)
pkd.
Asstt.Registrar[C.R.]
