{"id":173736,"date":"1998-03-19T00:00:00","date_gmt":"1998-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/meena-agrawal-vs-ms-worldink-finance-ltd-on-19-march-1998"},"modified":"2015-08-23T03:31:49","modified_gmt":"2015-08-22T22:01:49","slug":"meena-agrawal-vs-ms-worldink-finance-ltd-on-19-march-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/meena-agrawal-vs-ms-worldink-finance-ltd-on-19-march-1998","title":{"rendered":"Meena Agrawal vs M\/S. Worldink Finance Ltd. on 19 March, 1998"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Meena Agrawal vs M\/S. Worldink Finance Ltd. on 19 March, 1998<\/div>\n<div class=\"doc_citations\">Equivalent citations: 72 (1998) DLT 480, 1998 RLR 225<\/div>\n<div class=\"doc_author\">Author: D Jain<\/div>\n<div class=\"doc_bench\">Bench: D Jain<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>D.K. Jain, J.<\/p>\n<p>1.     In  this  suit for permanent injunction and recovery of  damages,  restraining the defendant from interfering with her possession of five Ambassador cars; for transferring of the said cars in the name of the  plaintiff in  the records of the State Transport Authority, the return of one of  the vehicles,  seized by the defendant to the plaintiff, and for a  decree  for<br \/>\nthe recovery of a sum of Rs. 5,05,000\/-, the plaintiff has filed an  application (IA No. 3373\/94) for grant of an ad interim injunction. On the  said application, notice with an ex parte ad interim injunction order was issued on  11th April, 1994, restraining the defendant from taking  possession  of four  Ambassador  cars and from disposing of, alienating  or  parting  with<br \/>\npossession of the seized Ambassador car.\n<\/p>\n<p>     On being served with summons\/notice, the defendant has moved an application (IA No. 1052 \/ 94) for vacation of the said ex parte order.\n<\/p>\n<p>2.   This order will dispose of both the applications.\n<\/p>\n<p>3.   According  to the plaintiff, in October, 1990 she applied to  the  defendant-finance  company for a term loan of Rs. 6,74,000\/- repayable in  36 monthly  instalments for financing five Ambassador cars; on  20th  October, 1990  the defendant insisted the cars being registered in its  name,  sanctioned and disbursed the said amount only then; that till 21st August, 1993<br \/>\nit  had paid 34 instalments i.e. Rs. 9,23,032\/- towards the initial  loaned amount  and  interest;  although she has made a payment in  excess  of  the entire  principal  amount  with interest calculated at 15%  per  annum  but according to the defendant two instalments of September and October,  1993, totalling Rs. 54,296\/- were still due. Plaintiff&#8217;s case further is that  at the  time of disbursement of the said loan, the defendant had  taken  forty<br \/>\nblank  cheques and a bunch of blank proformas signed by her; the  defendant Company  itself later filled up and presented the said cheques for  payment before arrangement for their encashment could be made and when the  cheques were  thus dishonoured due to insufficient funds, the defendant  threatened to  institute proceedings under the Negotiable Instruments Act,  1881;  she<br \/>\nrequested the defendant to supply a copy of her account and also a no  dues certificate  on  the  payment of the said balance amount  of  Rs.  54,296\/- before  she had made final payment but the defendant refused to do so;  the transaction in fact was merely a term loan and the plaintiff has been ready and  willing to abide by it; the defendant intercepted one of the cars  and forcibly  took  it in its possession on 18th March, 1994, and  despite  her report to the police no action was taken in the matter. It is alleged  that the  defendant has no right to take over the vehicles as the plaintiff  has returned  more  than  what was disbursed to her and  only  two  instalments remain to be paid; the defendant is threatening to take over the other four vehicles  and  unless they are restrained from doing so, she is  likely  to suffer irreparable loss and injury.\n<\/p>\n<p>4.     The defendant has not filed written statement and instead has  moved an  application  under  Section 34 of the Arbitration  Act,  1940  (IA  No.9967\/94)  for stay of proceedings in the suit and reference of disputes  to an  Arbitrator on the plea that there is an arbitration  agreement  between<br \/>\nthe parties. However, as noticed above, in its application under Order  39, Rule  4, CPC, the defendant has contested the plaintiff&#8217;s  application  for interim relief on the plea that under the lease agreement dated 30th  October,  1990, the vehicles in question were given to the plaintiff  only  for user  for a period of three years at a monthly rental of Rs. 27,148\/-  pay-\n<\/p>\n<p>able on the 20th of each month with a specific understanding that no right,title  or interest in them will pass on to the plaintiff\/lessee  and  there being defaults on the part of the plaintiff in payment of monthly  rentals, the defendant is within its right to repossess the vehicles. It is  alleged that a number of cheques issued by the plaintiff towards rental were dishonoured with the result that the defendant had to file against the plaintiff complaints  under Section 138 of the Negotiable instruments Act, which  are still pending. It is claimed that as on 31st August, 1994 an amount of  Rs. 1,62,888\/-  (six instalments) was still due to the defendant towards  lease<br \/>\nrentals  alongwith  late payment charges, legal charges,  cheque  dishonour charges etc., amounting to Rs., 4,04,309\/-. It is denied that the plaintiff has paid 34 instalments. It is asserted that since the plaintiff had failed to  make  payment of the amounts due, despite notice dated  16th  December, 1993,  the defendant had rightly seized one of the vehicles on 18th  March, 1994.\n<\/p>\n<p>5.   The  plaintiff  has filed replies to the  defendant&#8217;s  two  aforenoted applications, wherein, while reiterating its stand that there was no  lease agreement  between  the parties and the amount of Rs. 6,74,000\/-  was  disbursed by the defendant as a term loan, repayable in 36 monthly instalments it  has been denied that any of the vehicles belonged to the defendant.  It<br \/>\nhas been reiterated that the total cost of the vehicles was Rs.  8,99,000\/- out of which the defendant financed a sum of Rs. 6,74,000\/- and the rest of the amount of Rs. 2,25,000\/- was contributed by the plaintiff for acquiring the five vehicles.\n<\/p>\n<p>6 I  have  heard  Mr. P.K. Aggarwal for the plaintiff and  Mr.  Amit  S. Chadha for the defendant.\n<\/p>\n<p>7.   The  main  thrust of arguments of Mr. Aggarwal is that  assuming  that there  has been default on the part of the plaintiff in making  payment  of the said amounts in time, so far having paid 34 of the 36 instalments,  the defendant  cannot seize the vehicles in question forcibly,  without  taking recourse to a legal remedy which may be available to it. He maintains  that the  agreement  between the parties was of a term loan  for  financing  the cars;  the plaintiff gave the margin money to the supplier,  the  defendant provided the balance sale price but on the defendant&#8217;s insistence the  cars were  purchased in its name; the so called lease agreement was sham  having been subsequently scribed on blank papers got signed from the plaintiff.\n<\/p>\n<p>8.   On  the other hand, Mr. Chadha denies it and has urged that under  the lease  agreement between the parties, the defendant is authorised  to  take possession  of the vehicles and sell them without the intervention  of  the Court as there were defaults by the plaintiff in payment of the instalments fixed under the agreement and therefore, the defendant cannot be restrained<br \/>\nfrom  taking in its custody the vehicles in question. In  support  reliance has been placed on a decision of this Court in M\/s. Gopal Singh Hira Singh, Merchants  Vs. Punjab National Bank and Another, ,  interalia,  holding  that in the case of hypothecation of  goods,  the  borrower holds  the actual physical possession not in his own right as an  owner  of<br \/>\nthe  goods but as the agent of the Bank, and a decision of the Andhra  Pradesh High Court in State Bank of India Vs. S.B. Shah Ali (died) and Others,<br \/>\n, wherein it was held that when there is any specific clause in the hypothecation agreement empowering the hypothecate to take  possession of the goods and sell the same, in the event of default in payment, as per the said terms the hypothecate can proceed ahead without  intervention of the Court.\n<\/p>\n<p>9.   I have considered the matter. There is no quarrel with the proposition that  in  the case of hypothecation, possession of the  hypothecated  goods remains  with  the hypothecator but the hypothecate has a  right  to  take possession of the hypothecated property and sell it for realisation of  the debt  secured by it. But the question for consideration is whether  on  the<br \/>\nfacts and circumstances of the present case, the defendant could proceed to take  possession  of the subject vehicles by force and  sell  them  without intervention of the Court.\n<\/p>\n<p>10.  On  the  pleas  in contest raised by the parties, it  will  depend  on whether the transaction was in fact a finance agreement as contended by the plaintiff  or a lease agreement as set up by the defendant. Either  way  it would  depend whether the ownership in the cars was acquired by and  vested in the plaintiff or the defendant. If the real transaction contemplated was only a finance agreement, the cars were purchased by or for the  plaintiff, though  in  defendant&#8217;s  name  as explained,  the  defendant  was  to  have charge\/lien  on them for recovery of it&#8217;s dues, the lease agreement set  up by the defendant would be fake, as alleged by the plaintiff. The issue will rest  on trial. The defendant has filed IA No. 9967\/94 under Section 34  of the  Arbitration Act for stay of proceedings in the suit.  The  arbitration clause  referred  to  is in the lease agreement set up  by  the  defendant, factum  and  validity of which is disputed by the plaintiff.  The  question would thus, depend on whether there is an arbitration agreement. If so, the main  issue about the nature of transaction raised by the parties  will  be for  adjudication by the Arbitrator. If not by the court. Either way it  is not determinable right at this stage.\n<\/p>\n<p>11.  In  this view of the matter, I feel that the plaintiff  having  undisputably paid 30 instalments (though it claims to have paid 34 instalments), a  prima facie case exists in favour of the plaintiff insofar as the  question  of  taking possession of the remaining four  vehicles  is  concerned; balance of convenience also lies in its favour and if the defendant is  not<br \/>\nrestrained from taking the vehicles in its custody, the plaintiff is likely to  suffer irreparable loss. However, having regard to the fact  that  even according to the plaintiff two instalments of Rs. 27,148\/- each are due  to the  defendant,  and there is a dispute with regard to the  remaining  four instalments,  in the circumstances and in the interests of justice,  equity and  fair play, it seems necessary to put the plaintiff to terms and  maintain  status  quo. Accordingly I would direct the plaintiff to pay  to  the defendant  a  sum of Rs. 54,296 \/- within three weeks and deposit  in  this Court  a  further sum of Rs. 1,08;592 \/ &#8211; within six weeks  from  today  on which  the  ad interim order dated 11th April, 1994 shall  stand  confirmed till  the disposal of the suit. The amounts so deposited will be put  in  a<br \/>\nfixed  deposit receipt, initially for a period of one year, to  be  renewed from time to time till disposal of the suit. Since there is serious controversy with regard to the rate of interest and other charges, totalling  Rs. 2,41,421  \/-  (as on 31st August, 1994), I am not inclined  to  direct  the return of one vehicle already taken possession of by the defendant from the<br \/>\ncustody  of  the plaintiff. However, I would direct that the  said  vehicle will  neither  be sold nor used by the defendant without the leave  of  the Court. It will be parked in such a way that no undue damage is caused to it on account of idle parking. Similarly, the plaintiff shall also not sell or dispose  of any one of the four vehicles with her. The plaintiff will  also<br \/>\nensure  that  except for normal wear and tear no damage is  caused  to  the subject vehicles.\n<\/p>\n<p>     In the result, IA No. 3373\/94 is allowed in the above terms and IA N.\n<\/p>\n<p>1052\/94 is dismissed.\n<\/p>\n<p>     IA No. 3373\/94 allowed.\n<\/p>\n<p>     IA No. 1052194 dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Meena Agrawal vs M\/S. Worldink Finance Ltd. on 19 March, 1998 Equivalent citations: 72 (1998) DLT 480, 1998 RLR 225 Author: D Jain Bench: D Jain JUDGMENT D.K. Jain, J. 1. In this suit for permanent injunction and recovery of damages, restraining the defendant from interfering with her possession of five Ambassador [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-173736","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Meena Agrawal vs M\/S. 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