PNB CAPITAL SERVICES LIMITED Vs. SWARAJ AGROILS LIMITED

JUDGEMENT

(1.) The plaintiff is a wholly owned subsidiary of M/s. Punjab National Bank. The plaintiff filed the present suit seeking a mandatory injunction directing the defendant to hand over possession of the Husk Fired Fluid Packed Steam Boiler, Model MTFH-40A, as mentioned in commercial Invoice dated 5.3.1997. Written statement on behalf of the defendant has been duly filed. The plaintiff upon filing of the written statement also moved IA 10331/ 02 under Order XII Rule 6 CPC seeking a decree on the admissions contained in the written statement.

(2.) The material facts as averred by the plaintiff in the plaint are not disputed or traversed by the defendant in the written statement. The defendant has raised legal objections to the maintainability of the suit on account of the bar and embargo by virtue of Section 22(1) and (3) of the Sick Industrial Companies (Special Provisions) Act, 1985. Before I advert to the above, the relevant facts in brief may be noted.

(3.) The plaintiff has filed the present suit for mandatory injunction seeking re-possession of the leased machinery. The suit has been instituted by Mr. D.S. Sunderam as the General Power of Attorney Holder. The plaintiff being in the business of merchants banking and leasing of equipment had been approached by the defendant for grant of Lease Finance Facility for the acquisition of the Boiler. The plaintiff granted Lease Finance Facility of Rs.35 lacs, to the defendant for the purchase of the Boiler from M/s.Gopan Traders, manufactured by M/s. Thermax Limited, Pune. The lease finance was granted in terms of letter dated 17.12.96. The defendant accepted the said terms and executed among other the following documents i.e. (a) a Promissory Note dated 20.12.1996 for a sum of Rs. 54,60,000/- and (b) lease Agreement dated 20.12.96. Upon approval of the Lease Finance Facility and execution of requisite documents, the plaintiff vide cheque dated 24.12.96 remitted a sum of Rs.35 lacs in favour of M/s. Gopan Traders, Delhi with margin money being contributed by the defendant. Pursuant to the above finance, one Husk Fired Fluid Pac Steam Boiler, Thermax was delivered at the factory premises of the defendant. Defendant confirms having availed of the Lease Finance for the Boiler and having put the same to use. Defendant was required to repay a sum of Rs.54.60 lacs over a 60 months period in 20 quarterly instalments. The following are the material terms of the lease agreement by which the ownership of the equipment was retained and remained with the plaintiff :-