Judgment:
Bhaskar Bhattacharya, J.
1. The above twenty-one first miscellaneous appeals with the connected applications were heard analogously as the points involved in all these appeals were more or less similar. The facts involved in these appeals are also to some extent similar with slight variations in some of the cases. Accordingly, we decided to hear out all these appeals together and have heard the learned Counsel appearing for the respective parties.
2. All these appeals are preferred by the financier and are directed against similar orders passed by the learned Trial Judge thereby extending the ad interim order of injunction earlier granted in the proceeding by restraining the financier from taking possession of the vehicle which is the subject-matter of the dispute till the disposal of the application for temporary injunction in spite of the fact that the financier-appellant entered appearance and filed applications under Sections 5 and 8 of the Arbitration and Conciliation Act pointing out existence of the arbitration agreement between the parties and in some of the matters, the appellant filed written objection to the application for injunction opposing extension by pointing out suppression of material facts in the application.
3. It appears from record that twenty-one different suits were filed by the different respondents in these appeals thereby praying for declaration that they are the owners of the vehicles concerned and that the financier had no right to interfere with the possession of those plaintiffs in the vehicles. A further declaration was prayed for declaring that the plaintiffs were entitled to get the papers and documents upon which their signatures were taken by the financier on blank papers at the time of settlement of loan. A further decree for permanent injunction was prayed for restraining the financier, their men, agents and associates from seizing or taking possession of the concerned vehicle or disturbing peaceful possession of the plaintiffs in respect of such vehicle. The sum and substance of the allegations made in the plaints of those suits was that the plaintiffs for the purpose of purchasing a vehicle on loan approached the defendant and as a condition of granting such loan, the plaintiffs were asked to sign on various blank papers and blank cheques were taken from them with the assurance of giving the terms of the agreement to the plaintiffs in future, but till the filing of the suit, the financier did not supply the papers containing the terms and conditions of grant of such loan. According to the plaintiffs, they are unaware of the terms of grant of such loan and by taking advantage of the signatures taken on the papers, some oppressive terms have been introduced and for alleged violation of such terms, the financier was trying to seize the vehicles purchased by them with the amount taken as a loan.
4. In all these suits, all the plaintiffs, however, admitted that the defendant financed them and handed over the chassis of the vehicle to them and that in the register of the Motor Vehicles Authority it is recorded that the plaintiffs are the owners and that the defendant was shown as the financier. The plaintiffs in all these matters also admitted that they paid back some amounts by instalments at a specified rate for some months.
5. In all these suits, on the basis of selfsame allegation as made in the plaint, the plaintiffs came up with the applications for temporary injunction for restraining the financier from disturbing their possession in the concerned vehicle and the learned Trial Judge, on such applications, issued notice upon the financier to show cause why the prayer for injunction should not be granted and at the same time, granted ad interim order of injunction or status quo regarding the vehicle for a limited period. It appears from record that in all these matters, defendant entered appearance and filed application under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) thereby alleging existence of the arbitration clause for referring the dispute involved in the suit to the arbitral Tribunal. When such applications were filed, the plaintiffs although filed written objection to those applications before hearing of such applications, came up with the applications under Section 151 of the Code of Civil Procedure thereby taking a vacillating stance. In one hand, they maintained their initial standpoint that there was no valid agreement between the parties in the eye of law as they were unaware of the terms of the agreement and on the other hand, contended that in the event it was found that there was any valid agreement for arbitration, the suits and the applications for injunction might be converted to ones under Section 9 of the Act.
6. In most of the matters, the learned Trial Judge converted the suit and the application for temporary injunctions to a miscellaneous case under Section 9 of the Act and again extended the ad interim order of injunction which was initially granted in the regular suit till the disposal of the miscellaneous cases. It appears that in two of these appeals, the applications under Section 9 have been finally disposed of by the order impugned and in eight of the above appeals, although the applications have been filed by the plaintiffs for conversion, the suits have not yet been converted. In the other appeals, the suits have been converted into applications under Section 9 of the Act.
7. As indicated above, being dissatisfied with the grant of further ad interim order of injunction in the eleven converted proceeding under Section 9 of the Act, extending the ad interim injunction in the nine suits which are yet to be converted and disposing of the two converted application under Section 9 of the Act by granting injunction, all these twenty-one appeals have been preferred.
8. Mr. Bose, the learned advocate appearing on behalf of the appellants in all these matters, has advanced threefold submission before us.
9. First, according to Mr. Bose, once the plaintiffs filed a suit for declaration that the agreement entered into between the plaintiffs and the defendant was a void document on the ground that their signatures were taken on blank papers without disclosing the contents thereof, they are not entitled to get any unconditional order of injunction restraining his client from enforcing the obligations of the plaintiffs arising out of the agreement. According to Mr. Bose, even if we assume for the sake of argument that the agreements were entered into by taking signatures of the plaintiffs on blank papers, there is no dispute that in all these cases, huge amount of money has been taken by the plaintiffs from the defendant by way of loan and they got possession of the chassis of the vehicles and, therefore, in order to avoid the consequence of the breach of the agreements appearing from the documents, the plaintiffs must also be prepared to refund the benefit they have admittedly received pursuant to their alleged void agreements. Mr. Bose points out that in all these proceedings the plaintiffs are aware of the amount of money they admittedly received from the defendant and thus, the learned Trial Judge could not grant any injunction restraining his client from enforcing the terms of the agreements unless the plaintiffs were directed to return the money that they had admittedly received from his client.
10. Secondly, Mr. Bose contends that when his client came up with an application under Sections 5 and 8 of the Act, the plaintiffs were not prepared to face those applications and they themselves prayed for converting the suits and the applications for temporary injunction to one under Section 9 of the Act thereby depriving his client to prove the existence of a valid arbitration clause. Mr. Bose points out that once the plaintiffs themselves prayed before the Court for converting the suits to the proceedings under Section 9 of the Act in the event the agreements were found to be valid, they were estopped from disputing the existence of a valid arbitration clause and, thus, it should be presumed that they have abandoned their original claim that the agreement was a void one on the ground that they had entered into the agreement without knowing the contents thereon. In other words, Mr. Bose, submits that once the Court converts the suit into one under Section 9 of the Act, there is no scope of contending that the agreement itself in which there was an arbitration clause was vitiated by fraud for taking their signatures on the blank papers and such being the position, there is no prima facie case to grant any injunction when it is admitted by the plaintiffs that they have accepted a specified amount of money and have admittedly not complied with the terms of payment by instalments.
11. Thirdly, Mr. Bose contends that it is absurd to suggest that the plaintiffs did not know the terms of the agreement, nevertheless, got the chassis of the vehicle and got their names registered in the Motor Vehicles Authority as the owners with specific clause that the defendant was the financier. Mr. Bose points out that no document acknowledging receipt could be produced by the plaintiffs in any of these cases showing that they ever complained in writing to the defendant making the allegation of taking signatures on blank papers. Mr. Bose submits that although it is averred in the plaint that they communicated their grievance in writing but they cleverly stated that the defendant without acknowledging the receipt accepted the written complaint. Mr. Bose contends that no prudent man will believe that even though the defendant did not grant any receipt acknowledging receiving such complaint, the plaintiffs did not try to send the copy of the complaint or fresh complaint alleging withholding of receipt by the registered post or by speed post. Mr. Bose, therefore, contends that all these applications are made mala fide and this Court should set aside all the orders extending the ad interim order even on the basis of averments made in the plaint, application for injunction and the applications containing the prayer for conversion of the suit to one under Section 9 of the Act.
12. Mr. Roy Chowdhury, the learned senior advocate, has appeared on behalf of the some of the respondents and Mr. Banerjee, the learned senior advocate, has appeared on behalf of the other respondents and they opposed the aforesaid contentions of Mr. Bose.
13. According to Mr. Roy Chowdhury, the learned senior advocate appearing on behalf of the some of the respondents, the learned Trial Judge having fixed the next date for hearing, this Court, at this stage, should not interfere with the extension of the interim order and should direct the learned Trial Judge to dispose of the application under Section 9 of the Act after taking into consideration the respective objections of the parties. Mr. Roy Chowdhury submits that at this stage we should not go into the defence of the defendant and can only look into the contents of the applications for temporary injunction and the averments made in the plaints filed by his clients.
14. Mr. Roy Chowdhury further contends that his clients have every right to take loan and merely because his clients have taken loan, they are not required to repay the loan unconditionally without knowing the contents of the agreement and, therefore, the Court in its discretion can, in a given situation, grant ad interim order of injunction so long the matter is not disposed of finally. According to Mr. Roy Chowdhury, there is no wrong on the part of the learned Trial Judge in fixing a date of hearing without vacating the ad interim order of injunction for a limited period. Mr. Roy Chowdhury further contends that in the application under Section 151 of the Code for conversion, his client merely prayed for treating the suit as one under Section 9 of the Act in the event it was found that there existed a valid agreement for referring the dispute to the arbitrator. According to Mr. Roy Chowdhury, the learned Trial Judge erred in law in converting the suit to an application under Section 9 without arriving at the conclusion that there existed a valid agreement. Mr. Roy Chowdhury contends that in this appeal, this Court in exercise of its power under Section 105 of the Code should set aside the order of conversion and remand the matter for disposal of the application under Sections 5 and 8 of the Act.
15. Mr. Roy Chowdhury lastly submits that his clients have a right to contend that even if his clients are unable to pay back the loan-amount, the financier has no right to deprive his clients of the possession of the vehicles that they had purchased except by due process of law and thus, this Court should pass specific order restraining the defendant from disturbing the possession of the plaintiffs in the vehicles concerned without due process of law even if there is arrears of unpaid amount.
16. Mr. Banerjee, the learned senior advocate appearing on behalf of the some of the other respondents, supports the aforesaid contention of Mr. Roy Chowdhury and further submits that the question whether an agreement was a void one or not can be raised before the Arbitrator and, therefore, simply because his clients have prayed for conversion of the suit to one under Section 9 of the Act, such fact does not stand in the way of his clients in contending that the agreement for loan including the agreement for arbitration contained therein was vitiated by fraud. In this connection, Mr. Banerjee strongly relies upon the provisions contained in Section 16 of the Act. Mr. Banerjee, therefore, prays for dismissal of all the appeals.
17. Therefore, the first question that arises for determination by us is whether the learned Trial Judge was justified in converting the suit and the application for injunction to one under Section 9 of the Act without determining the question whether a valid agreement of arbitration existed between the parties and whether in these appeals preferred by the financier against the order extending the ad interim injunction till the disposal of the miscellaneous case under Section 9 of the Act, we can, in exercise of our power under Section 105 of the Code, set aside the order of conversion and direct the Trial Court to hear the application for injunction after reconverting the proceedings under Section 9 of the Act to the original suit.
18. On a plain reading of Section 105 of the Code of Civil Procedure, it is clear that the principle laid down in that section can be applied only in an appeal against the decree but there is no scope of application of such provision in an appeal against an order. It appears that the respondents themselves came up with the applications under Section 151 of the Code for conversion in the event the Court found existence of the valid arbitration clause. It is true that the Trial Court, before conversion, did not decide such question and converted the suit and the application for injunction as one under Section 9 of the Act and the suit was converted into a miscellaneous case and thereafter, re-imposed the order of temporary injunction earlier granted in the suit since converted. The respondent whose suit was so converted did not challenge such order by moving higher forum and at the same time, started enjoying the fresh order of injunction granted in the converted proceeding. These appeals are at the instance of the defendant granting interim order under Section 9. In these appeals preferred by the defendant, the plaintiffs cannot ask the Court to set aside the order of conversion made on their prayer. If a party prays for conversion only on condition that in the event of existence of an agreement for arbitration such order should be passed, in such a situation even if the Court erroneously made an order of conversion they cannot challenge the order of conversion for the simple reason that on their prayer such conversion was made and if no such prayer was made, the Court on finding that there existed an arbitration clause could not pass any further order in the suit. Moreover, having enjoyed the order of ad interim injunction they now cannot pray for setting aside the order of conversion and that too, in this appeal at the instance of the defendant. The order of conversion, it is needless to mention, is not even an appealable order and thus, in deciding this miscellaneous appeal against an order under Section 9 of the Act there is no scope of challenging a non-appealable order passed in a regular suit. We, thus, find no substance in the aforesaid contention of Mr. Roy Chowdhury.
19. The next question is whether the plea that the written agreement between the parties containing the clause of arbitration was void as the signature of the one of the parties was taken on a blank paper can at all be decided by the arbitrator and whether even disputing the agreement between the parties as a void agreement on the aforesaid ground one can maintain an application under Section 9 of the Act.
20. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of SBP and Company v. Patel Engineering Ltd. reported in : AIR2006SC450 while considering the scope of Sections 8 and 11 of the Act:
It is also not possible to accept the argument that there is an exclusive conferment of jurisdiction on the arbitral tribunal to decide on the existence or validity of the arbitration agreement. Section 8 of the Act contemplates a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement, on the terms specified therein, to refer the dispute to arbitration. A judicial authority as such is not defined in the Act. It would certainly include the court as defined in Section 2(e) of the Act and would also, in our opinion, include other courts and may even include a special tribunal like the Consumer Forum (See Fair Air Engineers (P) Ltd. and Anr. v. N.K. Modi : AIR1997SC533 ). When the defendant to an action before a judicial authority raises the plea that there is an arbitration agreement and the subject matter of the claim is covered by the agreement and the plaintiff or the person who has approached the judicial authority for relief, disputes the same, the judicial authority, in the absence of any restriction in the Act, has necessarily to decide whether, in fact, there is in existence a valid arbitration agreement and whether the dispute that is sought to be raised before it, is covered by the arbitration clause. It is difficult to contemplate that the judicial authority has also to act mechanically or has merely to see the original arbitration agreement produced before it, and mechanically refer the parties to an arbitration. Similarly, Section 9 enables a Court, obviously, as defined in the Act, when approached by a party before the commencement of an arbitral proceeding, to grant interim relief as contemplated by the Section. When a party seeks an interim relief asserting that there was a dispute liable to be arbitrated upon in terms of the Act, and the opposite party disputes the existence of an arbitration agreement as defined in the Act or raises a plea that the dispute involved was not covered by the arbitration clause, or that the Court which was approached had no jurisdiction to pass any order in terms of Section 9 of the Act, that Court has necessarily to decide whether it has jurisdiction, whether there is an arbitration agreement which is valid in law and whether the dispute sought to be raised is covered by that agreement. There is no indication in the Act that the powers of the Courts are curtailed on these aspects. On the other hand, Section 9 insists that once approached in that behalf, 'the Court shall have the same power for making orders as it has for the purpose of and in relation to any proceeding before it'. Surely, when a matter is entrusted to a Civil Court in the ordinary hierarchy of Courts without anything more, the procedure of that Court would govern the adjudication [See R.M.A.R.A. Adaikappa Chettiar and anr. v. R. Chandrasekhara Thevar ]
19. Section 16 is said to be the recognition of the principle of Kompetenz- Kompetenz. The fact that the arbitral tribunal has the competence to rule on its own jurisdiction and to define the contours of its jurisdiction, only means that when such issues arise before it, the Tribunal can and possibly, ought to decide them. This can happen when the parties have gone to the arbitral tribunal without recourse to Section 8 or 11 of the Act. But where the jurisdictional issues are decided under these Sections, before a reference is made, Section 16 cannot be held to empower the arbitral tribunal to ignore the decision given by the judicial authority or the Chief Justice before the reference to it was made. The competence to decide does not enable the arbitral tribunal to get over the finality conferred on an order passed prior to its entering upon the reference by the very statute that creates it. That is the position arising out of Section 11(7) of the Act read with Section 16 thereof. The finality given to the order of the Chief Justice on the matters within his competence under Section 11 of the Act, are incapable of being reopened before the arbitral tribunal. In Konkan Railway (Supra) what is considered is only the fact that under Section 16, the arbitral tribunal has the right to rule on its own jurisdiction and any objection, with respect to the existence or validity of the arbitration agreement. What is the impact of Section 11(7) of the Act on the arbitral tribunal constituted by an order under Section 11(6) of the Act, was not considered. Obviously, this was because of the view taken in that decision that the Chief Justice is not expected to decide anything while entertaining a request under Section 11(6) of the Act and is only performing an administrative function in appointing an arbitral tribunal. Once it is held that there is an adjudicatory function entrusted to the Chief Justice by the Act, obviously, the right of the arbitral tribunal to go behind the order passed by the Chief Justice would take another hue and would be controlled by Section 11(7) of the Act.
21. Moreover, it is now settled by the Supreme Court that if a party wants to take a plea that the agreement containing the clause of arbitration was vitiated by fraud such plea can only be decided by a Civil Court and not by the Arbitrator. (See: Atul Singh and Ors. v. Sunil Kumar Singh and and Ors. reported in : AIR2008SC1016 ; India Household and Healthcare Ltd v. LG Household and Healthcare Ltd. reported in : AIR2007SC1376 ;). In the case of Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. reported in : [1999]3SCR861 , the Supreme Court while deciding the question whether the Arbitrator can decide the question of winding up of a company specifically held that Sub-section (1) of Section 8 postulates that what can be referred to the arbitrator is only that dispute or matter which the arbitrator is competent or empowered to decide under the law and the power to order winding up of a company is contained under provisions of Companies Act and is conferred on the Court and as such, an arbitrator, notwithstanding any agreement between the parties would have no jurisdiction to order winding up of a company.
22. If we accept the contention of the learned Counsel for the respondents that even the question whether the purported agreement is vitiated by fraud, coercion etc. should be decided by the Arbitrator, the result would be disastrous as would appear from the following example:
23. A fraudulently prepares an agreement by forging the signature of B and in that fraudulent agreement makes a provision of appointment of C, a friend of A as arbitrator as if appointment of C is consented by B. B files a civil suit challenging the signature of B as an outcome of fraud and forgery. If we accept the contention of the learned Counsel for the respondent that the court should on the application of the Respondent under Section 8 of the Act without deciding the dispute of fraud mechanically refer the dispute to C, in that case, it would be an abuse of process of law to compel B to face the adjudication before C, the man set up by A, of the dispute of forgery. The aforesaid contention is opposed to the observation of the Supreme Court in the case of SBP & Co. (supra).
24. Moreover, if a party avails of the benefit of interim relief by taking recourse to Section 9 of the Act, it is implicit that such party accepts the existence of a valid arbitration clause. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of Sundaram Finance Ltd. v. NEPC India Ltd. reported in : [1999]1SCR89 :
When a party applies under Section 9 of the 1996 Act it is implicit that it accepts that there is a final and binding arbitration agreement in existence. It is also implicit that a dispute must have arisen which is referable to the arbitral tribunal.
25. Therefore, once the plaintiffs prayed for conversion of the suit to one under Section 9 of the Act and have without protest enjoyed the benefit of Section 9 of the Act, they are precluded from contending before us that the agreement between the parties for arbitration was vitiated by fraud and that they put their signatures on blank papers. Such a plea is available only by filing a suit in the Civil Court.
26. The next question is whether the learned Trial Judge was justified in granting unconditional order of injunction in the facts of the present case without passing any direction for deposit of the money taken by the plaintiffs from the defendant.
27. The relief of injunction, it is well known, is an equitable one and the party applying for such relief must come with clean hands. While granting a relief of temporary injunction, be it under order 39 of the Code or under Section 9 of the Act, the Court must be satisfied that the party applying for injunction has established prima facie case in the suit or in the proceedings before the Arbitral Tribunal, as the case may be, and in addition to that it must be established that the balance of convenience and inconvenience is in favour of granting such relief and that the party applying for such relief would suffer irreparable loss and injury if such relief is not granted bearing in mind that the object of grant of such relief is to maintain status quo till the final adjudication of the dispute between the parties.
28. In these appeals, those matters, where on the prayer of the respondents, the suit has already been converted to a miscellaneous case under Section 9 of the Act on the prayer of the plaintiff, the plea that the plaintiff put his signature on a blank paper is no longer available to him as he decided to avail of the relief under Section 9 of the Act which presupposes existence of a valid arbitration clause not vitiated by fraud on the part of the other side in obtaining blank signature of the applicant. Therefore, the basis of the dispute originally pleaded in the plaint has been virtually withdrawn and it should be presumed that knowing the contents of the agreement the applicant signed the agreement. The receipt of money pursuant to such agreement has been admitted in the plaint and it is not the case of the applicants that any amount has been paid to the financier in cash without any receipt. It is also established even from the plaint case the rate of instalments the plaintiff paid and the period of such paid instalments. If the Court finds that having regard to the amount of money admittedly advanced and the rate of instalments availed of by the plaintiff, the rate of interest charged by the financier is not unreasonable or prohibited by law of the land for lending money for a commercial venture, in our view, the court should, even at the stage of grant of ad interim order of injunction for a limited period, ask the plaintiff to deposit the amount fallen due till that day after the last instalment was paid before the institution of the suit and to go on making payment at the rate at which the plaintiff previously paid by way of instalment as would appear from the past conduct of the plaintiff till written objection is given by the defendant. The question whether the defendant financier would be entitled to invoke the clause of penal consequence for non-payment of the instalment, can be taken note of after the defendant discloses its objection to the grant of injunction and at the time of granting ad interim injunction, the court may not ask the plaintiff to deposit that additional amount of money which is payable for committing default. But in these types of appeals where the suit has already been converted, there is no justification of granting unconditional injunction knowing well that there is admitted default on the part of the plaintiff to pay back the money in accordance with the agreement. Even at the time of extending the ad interim order of injunction for further period before the contested hearing, it is the duty of the Court to see that the condition initially imposed has been complied with by the plaintiff and in case of violation of such condition, not to extend the ad interim order any further unless the plaintiff makes out sufficient cause for non-compliance of such condition and if sufficient cause is made out, the payment of defaulted amount in terms of the earlier appealable order which has since attained finality should be imposed. At the time of passing ad interim order or extending ad interim order, there is no scope of reducing the agreed amount of instalment as the Court cannot rewrite the terms of agreed amount of instalment. Of course, if it appears from the amount of loan advanced and the rate of instalments agreed that the rate of interest charged by the financier is prohibited by the law of the land, the Court by interim measure can direct the plaintiff to pay at a reduced rate of instalment. In disposing of the appeals of the above categories, we propose to adopt the above principles.
29. In those appeals where the suits have not yet been converted, the plaintiffs having already filed application for conversion in the event the Court finds that there existed a valid agreement for arbitration, in our view, the Court, in order to grant ad interim injunction or for extension of ad interim injunction, should direct the plaintiffs to go on paying at the agreed rate of instalment in addition to the direction for deposit of the defaulted amount as it existed on the date of filing of the suit. The fact that the plaintiff has prayed for conversion in the event of finding existence of valid agreement by the Court at the time of hearing of the application under Sections 5 and 8 of the Act itself indicates that the plaintiff does not want to challenge such adverse decision if passed by moving higher forum and for that reason, in advance, prayed before the Court to treat his suit as one under Section 9 of the Act. Therefore, we propose to follow the aforesaid principles in those eight appeals where the suits have not yet been converted.
30. In the two appeals where the applications under Section 9 of the Act have been disposed of by granting unconditional injunction, we should deal with those cases individually after taking into consideration the respective defence of the appellant.
31. The other point raised by Mr. Roy Chowdhury was that even if his clients took money and is unable to pay off the loan, this Court should pass an interim order restraining the appellant from touching his clients' vehicles, although hypothecated to the appellant, except by due process of law.
32. For giving effective answer to this question, we must take into consideration the defence of the appellant. Since nineteen of these twenty-one appeals are at the instance of the defendant against the extension of ad interim order of injunction, at this stage, we have in these nineteen appeals restricted our scrutiny only to the allegations contained in the plaints, the applications for temporary injunction and the applications for conversion filed by the plaintiffs and to fact that the appellant has already filed an application under Sections 5 and 8 of the Act and on those basis considered whether the learned Trial Judge was justified in passing the orders impugned. Since the main applications for interim relief are yet to be heard on merit in these nineteen appeals, and for the purpose of final disposal of those applications, the defence of the appellant is to be taken into consideration, within the limited scope of these appeals we cannot effectively answer the aforesaid question without knowing the detailed contents of the terms of the agreements subsisting between the parties which can be ascertained only after considering the defence of the appellant and the reply given thereto by the plaintiffs. However, for the purpose of disposal of the other two appeals where the applications under Section 9 of the Act have already been disposed of after taking into consideration the written objection, we should answer the said question raised by Mr. Roy Chowdhury.
33. It is now settled law that so far the immovable property is concerned, if somebody in unlawful possession is dispossessed without due process of law even by the lawful owner, the person so dispossessed of the immovable property can by simply by filing a suit under Section 6 of the Specific Relief Act within six months from the date of dispossession, get back possession even though he had no title to the property, provided, however, that the dispossession was not by a Government. But if a trespasser evicts a lawful owner and immediately thereafter, comes before court as plaintiff and prays for injunction restraining the lawful owner from disturbing his possession except by due process of law, the civil court will not assist such a person to protect his illegal possession unless such possession has ripened into a possession 'acquiesced by the lawful owner'. The Civil Court will protect only 'settled possession' of a trespasser against the lawful owner. The following observations of the Supreme Court in the case of Rame Gowda (D) by L.Rs v. M. Varadappa Naidu reported in AIR 2004 SC 2609 are relevant:
It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
34. The aforesaid principle applicable in the case of dispossession of immovable property, however, has no application to the case of hire-purchase agreement over moveable property where the hirer himself has agreed with the financier that in case of default, the financier would be entitled to take possession of the vehicle in question and can for that purpose, enter even into the property of the hirer.
35. The Supreme Court in several decisions had the occasions to deal with this type of cases and had come to the conclusion that the financier had every right to take possession of the vehicle, in case of default but in the process of taking possession they should not use any excessive force which would result in an offence punishable under the law.( See Charanjit Singh Chadha v. Sudhir Mehra : 2001CriLJ4255 ; Manipal Finance Ltd. v. T. Bangarappa ; Sardar Trilok Singh v. Satyadeo Tripathi : 1980CriLJ822 ; K.A. Mathai v. Kora Bibbikutti : (1996)7SCC212 ;). Therefore, if while taking possession, the financier or his agent commits any offence, such as, murder, grievous hurt, hurt etc., they cannot escape their liability for violating the law. But without committing any offence prescribed under the law, the financier has every right to take possession of the vehicle in case of default if the hirer at the time of taking loan agreed to surrender possession in such a situation, because such agreement gives right to the financier to hold possession of the vehicle and right of the hirer to retain possession of the vehicle is lost on committing default. In this connection, we propose to rely upon the following observations of the Apex Court in the case of Orix Finance (India) Ltd. v. Jagmandar Singh and Anr. reported in : (2006)2SCC598 :
If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But mere fact that possession has been taken cannot be a ground to contend that the hirer is prejudiced. Stand of learned Counsel for the respondent that convenience of the hirer cannot be overlooked and improper seizure cannot be made. There cannot be any generalisation in such matters. It would depend upon facts of each case. It would not be, therefore, proper for the High Courts to lay down any guideline which would in essence amount to variation of the agreed terms of the agreement.
36. The Article 300A of the Constitution of India merely says that no person should be deprived of his property save by the authority of law. This Article has been inserted by the Constitution (44th Amendment) Act, 1978. Prior to this amendment, the right to property was guaranteed by Article 31. While the subclause (1) of that Article has been shifted from part III to the newly inserted Article 300A, the Sub-clause (2) of Article 31, which dealt with compulsory acquisition of the property, has been repealed. The Sub-clause (f) of Clause (1) of Article 19 which assured fundamental right to acquire and hold property has also been omitted by the said amendment with effect from June 20, 1979. The conjoint effect of these changes is that a) the right to hold property has ceased to be a fundamental right and b) it has been left to the legislature to deprive a person by the authority of law. If, however, one's property is taken away by the action of the State without the authority of law, one would be entitled to the legal relief on the ground that such state-action is in contravention of Article 300A. But as the language of Article 31(1) or the present Article 300A has been couched in a negative form just like the language of Article 21 which is still within Part III, any deprivation of property except by the authority of law by a private individual not deriving authority from the State would not come within Article 300A. Even though Article 21 is within Part III of the Constitution of India, the Apex Court in the case of Sm. Vidya Verma v. Dr. Shiv Narayan Verma reported in A.I.R. 1956 S.C. 108 has specifically held that the violation of personal liberty guaranteed in Article 21 by a private individual does not come within the purview of Article 21. In paragraph 7 of the judgement, the Supreme Court took notice of the earlier decision of that Court in the case of P.D. Samdasani v. Central Bank of India reported in : [1952]1SCR391 where it was held that the violation of the right to property by a private individual did not come within the scope of the then Article 31(1) which is now the Article 300A.
37. If the owner of a vehicle, a moveable property, himself by agreement conceded to give right to the financier to take possession of the same in case of default in payment of instalments and in exercise of that right, the financier takes possession without committing any offence and without violating any law of the land, the hirer cannot take the shelter of Article 300A of the Constitution of India and complain that he was deprived of his property without authority of law. The position would have been different if any specific law was enacted by the legislature providing procedure for recovery of the vehicles in this situation and in such circumstances, the hirer could complain that his vehicle should be recovered only in accordance with that provision of the Statute.
38. In the Motor Vehicles Act itself, the possession by the financier in terms of hire-purchase agreement has been recognized as would appear from Section 51(5) of the Motor Vehicles Act. A hirer, so long the entire instalments are not fully paid, without taking 'No Objection Certificate' from the financier cannot even transfer the vehicle. Although, by virtue of definition of 'owner' in the Motor Vehicles Act, even a hirer, before the instalments are fully paid, is treated to be the owner for the purpose of complying with the obligations of an owner referred to in the Motor Vehicles Act, there is no law prohibiting taking of possession by the financier in terms of the agreement, if contracted to by the hirer.
39. If there is any specific restriction imposed by any law prohibiting taking possession of the vehicle, the hirer can legitimately complain that the financier cannot take possession of the vehicle except by such recognised process. Till today no such law has been enacted laying down any procedure for taking possession of the vehicle in case of default, as a result, the Supreme Court in the case of Manager, ICICI Bank Ltd. v. Prakash Kaur and Ors. reported in 2007(1) Crimes 407(SC) expressed its desire that law should be enacted for the purpose of handling this type of disputes and a separate wing should be created wherein appropriate training should be given in accordance with the RBI guidelines which would facilitate the bank in its recovery process and also would provide more responsibilities to the persons so engaged. Notwithstanding such anxiety expressed by the Supreme Court in the said decision, till today no law has been enacted recommending any process of taking possession of the vehicle by a financier in the case of admitted default where the hirer agreed to lose his right to possess the vehicle.
40. We, therefore, find no substance in the contention of the Mr. Roy Chowdhury that even though his clients in those two cases expressly authorised the financier to take possession in case of default, the financier cannot, except by filing a suit, recover the vehicle pursuant to the agreement. Mr. Roy Chowdhury could not place before us any such law of the land. We have already pointed out that even though there is a specific law authorising a trespasser of immovable property to get back possession if he is dispossessed by the owner without due process of law vide Section 6 of the Specific Relief Act, if such a trespasser himself dispossessing the lawful owner immediately comes before a Court as plaintiff for protecting his illegal possession, the Court will not assist him to protect his unsettled possession. In case of movable property, there being no law similar to the one provided in Section 6 of the aforesaid Act, a person admitting that he had lost his right to possess the movable property any further for his default by virtue of an agreement is in a worse position and consequently, cannot demand unconditional injunction for protecting his right of possession which has since come to an end against the person in whose favour the right to possess such property has accrued by virtue of the mutual agreement which the hirer cannot dispute. It is not even established that the financier has offered the loan by charging excess rate of interest which is prohibited by law.
41. Based on our above views, we now propose to deal with the appeals separately.
F.M.A.T. No. 145 of 2009 and (C.A.N. 1045 of 2009)
G.E. Capital Transportation Financial Services Ltd. v. Amritajit Mitra
This appeal is preferred against Order No. 14 dated 21st January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 4,33,086/- and on his own showing the balance due is Rs. 3,83,826/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 22,578/- and 18 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 19th November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we modify the order impugned by extending the ad interim order of injunction on condition that the plaintiff shall pay to the appellant within a week from today the total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 22,578/- amounting to (Rs. 22,578/- x 17) = Rs. 3,83,826/- and will go on making payment at the same rate of Rs. 22,578/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of any part of such amount, the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today. The appeal is thus disposed of.
F.M.A.T. No. 146 of 2009 (C.A.N. 1052 of 2009) G.E. Capital Transportation Financial Services Ltd. v. Archana Dutta and Anr.
This appeal is preferred against Order No. 12 dated 21st January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffsrespondents, they had paid Rs. 3,58,734/- and on their own showing, the balance due is Rs. 3,72,224/- in accordance with the agreement. The monthly rate of instalment at which the plaintiffs paid was Rs. 23,264/- and 14 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 21st November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiffs shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 23,264/- amounting to (Rs. 23,264/- x 17) = Rs. 3,95,488/- and will go on making payment at the same rate of Rs. 23,264/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 147 of 2009 and (C.A.N. 1053 of 2009) G.E. Capital Transportation Financial Services Ltd. v. Sumitra Koley
This appeal is preferred against Order No. 11 dated 22nd January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, she had paid Rs. 2,70,660/- and on her own showing, the balance due is Rs. 3,93,680/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 24,605/- and 7 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 30th November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 24,605/- amounting to (Rs. 24,605/- x 17) = Rs. 4,18,285/- and will go on making payment at the same rate of Rs. 24,605/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 148 of 2009 and (C.A.N. 1054 of 2009) G.E. Capital Transportation Financial Services Ltd. v. Kajal Chakraborty
This appeal is preferred against Order No. 11 dated 28th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 3,19,970/- and on his own showing, the balance due is Rs. 4,02,390/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 23,670/- and 11 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 30th November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 23,670/- amounting to (Rs. 23,670/- x 17) = Rs. 4,02,390/- and will go on making payment at the same rate of Rs. 23,670/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 139 of 2009 and (C.A.N. 1044 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Susanta Dutta
This appeal is preferred against Order No. 12 dated 17th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 3,37,759/- and on his own showing, the balance due is Rs. 3,51,645/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 23,443/- and 13 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 21st November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 23,443/- amounting to (Rs. 23,443/- x 17) = Rs. 3,98,531/- and will go on making payment at the same rate of Rs. 23,443/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 62 of 2009 and (C.A.N. 377 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Sourav Dey
This appeal is preferred against Order No. 13 dated 6th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 1,18,358/- and on his own showing, the balance due is Rs. 4,42,890/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 24,605/- and 3 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 8th October, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 18 months counting from the month of October, 2007 till March, 2009 at the rate of Rs. 24,605/- amounting to (Rs. 24,605/- x 18) = Rs. 4,42,890/- and will go on making payment at the same rate of Rs. 24,605/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 101 of 2009 and (C.A.N. 846 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Laxmi Kanta Adhikary
This appeal is preferred against Order No. 13 dated 16th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 3,56,988/- and on his own showing, the balance due is Rs. 4,07,556/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 22,642/- and 14 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 30th November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 22,642/- amounting to (Rs. 22,642/- x 17) = Rs. 3,84,914/- and will go on making payment at the same rate of Rs. 22,642/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 102 of 2009 and (C.A.N. 844 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Sukumar Nandy
This appeal is preferred against Order No. 14 dated 16th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 4,11,718/- and on his own showing, the balance due is Rs. 2,55,876/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 21,323/- and 20 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 10th December, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 16 months counting from the month of December, 2007 till March, 2009 at the rate of Rs. 21,323/- amounting to (Rs. 21,323/- x 16) = Rs. 3,41,168/- and will go on making payment at the same rate of Rs. 21,323/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 104 of 2009 and (C.A.N. 843 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Prasanta Dana
This appeal is preferred against Order No. 15 dated 17th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 3,87,806/- and on his own showing, the balance due is Rs. 3,95,488/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 23,264/- and 13 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 21st November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 23,264/- amounting to (Rs. 23,264/- x 17) = Rs. 3,95,488/- and will go on making payment at the same rate of Rs. 23,264/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 172 of 2009 and (C.A.N. 1301 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Sukumar Nandi
This appeal is preferred against Order No. 12 dated 5th February, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 1,54,881/- and on his own showing, the balance due is Rs. 3,44,470/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 24,605/- and 9 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 10th December, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 16 months counting from the month of December, 2007 till March, 2009 at the rate of Rs. 24,605/- amounting to (Rs. 24,605/- x 16) = Rs. 3,93,680/- and will go on making payment at the same rate of Rs. 24,605/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 171 of 2009 and (C.A.N. 1289 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Sushanta Dutt
This appeal is preferred against Order No. 12 dated 29th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 37,855/- and on his own showing, the balance due is Rs. 2,67,825/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 17,855/- and 2 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 27th November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 17,855/- amounting to (Rs. 17,855/- x 17) = Rs. 3,03,535/- and will go on making payment at the same rate of Rs. 17,855/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today. F.M.A.T. No. 61 of 2009 and (C.A.N. 379 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Amritajit Mitra
This appeal is preferred against Order No. 10 dated 6th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 3,90,262/- and on his own showing, the blande due is Rs. 3,58,725/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 22,422/- and 16 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 15th November, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 17 months counting from the month of November, 2007 till March, 2009 at the rate of Rs. 22,422/- amounting to (Rs. 22,422/- x 17) = Rs. 3,81,174/- and will go on making payment at the same rate of Rs. 22,422/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 105 of 2009 and (C.A.N. 848 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Jayanta Mondal
This appeal is preferred against Order No. 12 dated 19th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 3,51,984/- and on his own showing, the balance due is Rs. 2,22,252/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 18,521/- and 17 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 10th December, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 16 months counting from the month of December, 2007 till March, 2009 at the rate of Rs. 18,521/- amounting to (Rs. 18,521/- x 16) = Rs. 2,96,336/- and will go on making payment at the same rate of Rs. 18,521/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 103 of 2009 and (C.A.N. 847 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Chanchal Bhattacharya
This appeal is preferred against Order No. 17 dated 9th January, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 3,76,544/- and on his own showing, the balance due is Rs. 4,23,612/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 23,534/- and 13 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 10th January, 2008 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 15 months counting from the month of January, 2008 till March, 2009 at the rate of Rs. 23,534/- amounting to (Rs. 23,534/- x 15) = Rs. 3,53,010/- and will go on making payment at the same rate of Rs. 23,534/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 173 of 2009 and (C.A.N. 1298 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Arnab Dey
This appeal is preferred against Order No. 14 dated 3rd February, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 2,46,041/- and on his own showing, the balance due is Rs. 4,69,998/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 23,670/- and 9 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 8th October, 2007 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 18 months counting from the month of October, 2007 till March, 2009 at the rate of Rs. 23,670/- amounting to (Rs. 23,670/- x 18) = Rs. 4,26,060/- and will go on making payment at the same rate of Rs. 23,670/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 199 of 2009 and (C.A.N. 1355 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Dipak Banerjee
This appeal is preferred against Order No. 4 dated 5th February, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 4,83,820/- and on his own showing, the balance due is Rs. 1,69,337/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 24,191/- and 18 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 1st November, 2008 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 5 months counting from the month of November, 2008 till March, 2009 at the rate of Rs. 24,191/- amounting to (Rs. 24,191/- x 5) = Rs. 1,20,955/- and will go on making payment at the same rate of Rs. 24,191/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 200 of 2009 and (C.A.N. 1354 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Dipak Banerjee
This appeal is preferred against Order No. 4 dated 5th February, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 21,71,550/- and on his own showing, the balance due is Rs. 2,44,395/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 27,155/- and 7 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 1st November, 2008 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 5 months counting from the month of November, 2008 till March, 2009 at the rate of Rs. 27,155/- amounting to (Rs. 27,155/- x 5) = Rs. 1,35,775/- and will go on making payment at the same rate of Rs. 27,155/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 201 of 2009 and (C.A.N. 1356 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Dipak Banerjee
This appeal is preferred against Order No. 4 dated 5th February, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffrespondent, he had paid Rs. 21,71,550/- and on his own showing, the balance due is Rs. 2,44,395/- in accordance with the agreement. The monthly rate of instalment at which the plaintiff paid was Rs. 27,155/- and 7 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 1st November, 2008 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiff shall pay within a week from today total amount due for 5 months counting from the month of November, 2008 till March, 2009 at the rate of Rs. 27,155/- amounting to (Rs. 27,155/- x 5) = Rs. 1,35,775/- and will go on making payment at the same rate of Rs. 27,155/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A.T. No. 193 of 2009 and (C.A.N. 1302 of 2009)
G.E. Capital Transportation Financial Services Ltd.
Versus
Krishnendu Dey and Anr.
This appeal is preferred against Order No. 4 dated 2nd February, 2009 passed by the learned Trial Judge. In this case, according to the plaintiffsrespondents, they had paid Rs. 6,15,524/- and on their own showing, the balance due is Rs. 1,31,898/- in accordance with the agreement. The monthly rate of instalment at which the plaintiffs paid was Rs. 21,983/- and 27 instalments were paid. In this case, the learned Trial Judge granted the initial interim order on 1st November, 2008 but after obtaining the ad interim order of injunction, no further amount of instalment has been paid. In such circumstances, we extend the ad interim order of injunction on condition that the plaintiffs shall pay within a week from today total amount due for 5 months counting from the month of November, 2008 till March, 2009 at the rate of Rs. 21,983/- amounting to (Rs. 21,983/- x 5) = Rs. 1,09,915/- and will go on making payment at the same rate of Rs. 21,983/- within 7th of every month till the original amount of loan and the agreed amount of interest are paid off or till the disposal of the application whichever is earlier. First of such payment should be made by April 7, 2009; in default of payment of such amount the interim order will stand vacated. If the amount is so paid, the interim order will continue till the disposal of the application before the learned Trial Judge. There will be, however, unconditional ad interim order of injunction restraining the appellant from taking possession of the vehicle for a week from today.
F.M.A. No. 1405 of 2008 and (C.A.N. 9011 of 2008)
G.E. Capital Transportation Financial Services Ltd.
Versus
Samir Koley
By this appeal, the financier has challenged Order No. 12 dated 22nd September, 2008 passed by the learned Trial Judge thereby disposing of the converted application under Section 9 of the Act by granting unconditional order of injunction till the disposal of the proceeding before the Arbitrator. In this proceeding, after the conversion of the suit to a proceeding under Section 9 of the Act, the respondent came up with an application for amendment of the original application, but it was maintained that his signatures were taken on the various blank papers and without knowing the contents of the same he signed the papers. Nevertheless, it has been established from the materials on record that he enjoyed the benefit of a loan of Rs. 7,55,000/- payable with interest in 60 monthly instalments at the rate of Rs. 16,864/-. It is admitted that in terms of the agreement, the plaintiff made payment of the first 22 installments and thereafter, did not make any payment towards repayment of the loan. In view of our finding recorded earlier, once the applicant wants to avail of the benefit of Section 9 of the Act, he cannot allege that he put signatures on the blank papers. We have already pointed out that the question whether the signatures were obtained on the blank papers can only be decided by a Civil Court. In view of this inconsistent stance taken by the respondent, the learned Trial Judge should have dismissed the application by granting no relief particularly when even after filing of the suit and obtaining ad interim order, nothing has been paid. We, thus, find that this is a fit case where the application under Section 9 is liable to be dismissed as a mala fide one. We accordingly set aside the order impugned and hold that the plaintiff's application is a mala fide one and is liable to be dismissed. The appeal is, thus, allowed, the order impugned is set aside and the miscellaneous case is dismissed with costs which we assess at 200 G.Ms.
F.M.A. No. 1404 of 2008 and (C.A.N. 9010 of 2008)
G.E. Capital Transportation Financial Services Ltd.
Versus
Debdas Mullick
By this appeal the financier has challenged Order No. 13 dated 22nd September, 2008 passed by the learned Trial Judge thereby disposing of the application under Section 9 of the Act in the converted proceeding by granting unconditional order of injunction till the disposal of the proceeding before the Arbitrator.
The fact of the present case is exactly the similar to the above one. In this case also the respondent took a loan of Rs. 7,55,000/- agreeing to pay the same by 60 monthly instalments at the rate of Rs. 16,864/-. In this case, 12 instalments were paid and thereafter, no further amount has been paid. For the selfsame reasons, as indicate above, this application is also liable to be dismissed as a mala fide one. The appeal is, thus, allowed, the order impugned is set aside and the miscellaneous case is dismissed with costs which we assess at 200
Bhaskar Bhattacharya, J.
I agree.