GOODWILL INDIA LIMITED Vs. T BALA CHANDRAN

JUDGEMENT

(1.) M/s Goodwill India Limited, the petitioner, have filed the present petition under Section 20 of the Arbitration Act, 1940 ( hereinafter referred to as 'the Act') with the prayer that ' Hire Purchase Agreement' dated the 5th March, 1988, containing the arbitration clause be ordered to be filed in the Court and the disputes/differences, mentioned in the petition, be referred for decision to the sole Arbitrator Sh. Raj Paul Sagar, Advocate. It is averred that the petitioner, a Company registered under the Companies Act, having its registered office at E-13/ 29, Connaught Place, New Delhi, carrying on the business of hire purchase of motor vehicles in the different parts of the Union territory, hired out a motor vehicle T.D.V., Wheel Base 166", Model 1984, bearing Engine No. 692.D03.1.89964, Chassis No.344.050.1.82187 bearing Registration No.,KLG8393,torespondentNo.lunder Hire Purchase Agreement dated the 5th March, 1988 as hirer and respondent No. Z signed the said agreement in his capacity as guarantor for and on behalf of respondent No. I on the terms and conditions contained therein. The said agreement, it is averred, was entered into for a total sum of Rs. 2,06,400.00 which included the value of the vehicle in question as Rs. l,20,000.00 , hire purchase charges Rs. 71,400.00 and Rs. 15,000.00 on account of insurance charges. It is alleged that the said sum of Rs. 2,06,400.00 was agreed to be paid in 42 monthly instalments, each of Rs. 4,900.00 , except the last instalment being of Rs. 5,500.00 commencing with effect from 5th April, 1988 and thereafter on or before the 5th day of each succeeding calendar month as provided in Schedule ' B' to the said Agreement besides payment of incidental charges and compensation charges etc. It is further alleged that respondent No. 2 signed the Hire Purchase Agreement as guarantor for and on behalf of respondent No. I and therefore his liability to co-extensive with that of respondent No. 1.

(2.) It is alleged that the respondent after taking away the said vehicle under the Hire Purchase Agreement, referred to above, failed and neglected to pay the hire instalments in terms of the said agreement and a sum of Rs. 1,50,200.00 is due and payable towards over due hire money and Rs. 77.800.00 towards compensation charges for late payment. As per the case of the petitioner, in all a sum of Rs. 4,06,600.00 is due and payable to the petitioner-Company by the respondents jointly and severally as the respondents have failed and neglected to pay the instalments as agreed. It is prayed that the Hire Purchase Agreement dated the 5th March, 1988, containing the arbitration clause be ordered to be filed in the Court and the disputes and differences in connection with the said agreement, as mentioned in the petition be referred to the sole arbitration of the named arbitrator Sh. Raj Paul Sagar, Advocate, Delhi.

(3.) Notice of the petition was issued to the respondents who did not appear despite service and were therefore proceeded ex parte vide order dated 18th April. 1995. The petitioner-Company was allowed liberty of adducing evidence on affidavit. In support of its case, the petitioner-Company has filed an affidavit of Sh. R.N.Gupta, constituted attorney and Managing Director of the petitioner-com- pany. Said Sh. R.N. Gupta in his affidavit dated 12th May, 1995 has fully supported the case of the petitioner and has proved the material documents including the Hire Purchase Agreement Ex. Public Witness 1/3). The Hire Purchase Agreement ( Ex. Public Witness 1/3) contains an arbitration clause which provides that all disputes/differences and or claims arising out of Hire Purchase Agreement ( Ex. Public Witness 1/3) shall be settled by arbitration in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory amendments thereof and shall be referred to the sole arbitration of Mr. Raj Pal Sagar, Advocate, Delhi or in case of his death, refusal, neglect, inability or incapability to act as an Arbitrator to the sole arbitration of Mr. Inderjit Gulati, Advocate, Delhi and that the reference to the Arbitrators shall be within the clause, terms and conditions of the agreement and the award given by the arbitrator shall be final and binding on all the parties concerned.