ANAND AND ASSOCIATES Vs. INTERNATIONAL FINANCE LTD

JUDGEMENT

(1.) THE petitioner is aggrieved by an order dated 5. 12. 2005 of the learned ADJ whereby he allowed an application under Section 10 CPC made by the respondent and stayed the proceedings of the suit pending before him.

(2.) BRIEF facts relevant for the purpose of deciding the petition are that the petitioner got Hydraulic Excavator bearing no. Landt 90 CK-3 S. No. A-2331, financed from the respondent. There was a lease agreement/hire purchase agreement in respect of the equipment. The cost of equipment was around rs. 38,32,400/ -. The petitioner had made a down payment of Rs. 8,21,614/- out of which Rs. 5,72,400/- was towards initial payment, Rs. 48,900/- towards management fee, Rs. 2,00,000/- towards security depositing and the machine was financed by the respondent at 17. 13% flat rate on the balance amount of Rs. 32,60,000/ -. The petitioner had not been able to pay the installment and for this reason the agreement was terminated by the respondent in July, 1997. The respondent had taken possession of the machine while it was lying on the site on 2. 10. 1999. The petitioner"s contention is that this possession was taken forcibly in his absence. The petitioner filed a suit seeking a decree of mandatory injunction directing respondent/defendant to deliver the machine to him and decree of permanent injunction restraining defendant from selling or transferring the machine to any third party.

(3.) THE defendant filed an application under Section 10 CPC informing the Court that the respondent/defendant had initiated arbitration proceedings in terms of the arbitration clause in the agreement in 1997 itself and filed an arbitration case no. 274/1997 before Kolkata High Court at Kolkata. As a result of this petition, a receiver Mr. Rama Prasad Mukherjee, Advocate was appointed on 19. 11. 1997 to take symbolic possession of the machine. By subsequent order dated 12. 12. 1997 in the arbitration petition by Kolkata High court directed the receiver to take actual physical possession of the machine either personally or through the authorized agent and store the same in secured place. The respondent also reproduced the arbitration clause of the lease agreement under which the matter was referred to the sole arbitrator Shri jagmohan Jhunjhunwala, Solicitor and Advocate. The lease agreement also contained a clause that Courts at Kolkata alone shall have jurisdiction to entertain the proceedings. The respondent further pointed out that during pendency of the arbitration proceedings, the petitioner had requested for a re-schedulement of the payment and a settlement was arrived at. The petitioner had issued post dated cheques, which were also dis-honoured. It is stated that the arbitration proceedings were going on before the Arbitrator and therefore the suit was liable to be stayed.