BHUMIKA ENTERPRISES PVT LTD Vs. ATUL ENTERPRISES

JUDGEMENT

(1.) THE two petitions have been preferred by the two parties to the agreement dated 5th March, 2009 containing an arbitration clause. M/s. Bhumika Enterprises Pvt. Ltd. (BEPL) petitioner in omp No. 328/2009 had put on sale certain machineries/buildings scrap etc. at its works at Udaipur as detailed in Annexure 1 to the Agreement; M/s. Atul enterprises (AE) (through its proprietor Ms. Saroj Bala) petitioner in OMP No. 331/2009 had agreed to buy the same for a total sale consideration of Rs. 7 crores under the said Agreement dated 5th March, 2009. The said consideration was agreed to be paid in installments commencing from 20th March, 2009 till 5th september, 2009 as mentioned therein and of which post dated cheques were delivered by AE to BEPL. It was inter alia a term of the said Agreement that, on receipt of each installment, BEPL in consultation with AE would approve a lot from the list of machinery in annexure 1 that AE can dismantle and remove from the premises and the value of such machinery shall not exceed the installment paid by AE; that if AE lifts more than the amount paid till then bepl shall forfeit all monies paid till then and put up the entire remaining machinery for sale as per its discretion; that if AE did not pick up the lot as approved on the due date, the payment of the next installment shall still become due; that AE shall not be entitled to withdraw or cancel and in case it does so, all monies paid till then shall be forfeited by BEPL; time was the essence of the Agreement and it was further provided that upon failure of AE to lift the entire machinery within the agreed time and the grace time agreed, damages as mentioned therein shall be levied for a further term of 30 days and whereafter BEPL shall have the right to forfeit all the money paid till then and to dispose of the entire machinery; the sale was to be on as is where is basis.

(2.) SOME of the cheques having been dishonoured, BEPL issued notice of termination of the Agreement to AE and which has resulted in the petitions being filed. In OMP No. ; 328/2009 BEPL has claimed the relief of restraining AE from interfering with BEPL selling, transferring or creating third party rights in the machinery and building scrap lying at the premises or from removal thereof. In OMP No. 331/2009 AE has claimed the interim measures of staying the operation of the letter dated 4th june, 2009 of BEPL of termination of the Agreement and for directing BEPL to maintain status quo ante as it existed on the date of execution of the agreement. Vide ad interim orders dated 15th June, 2009 the parties were directed to maintain status quo in respect of machinery and building scrap lying at the premises of BEPL. The said order was subsequently modified on 2nd july, 2009 with the consent of the parties, to be with respect only to the machinery subject matter of the Agreement and not with respect to other machinery at the said premises of BEPL which did not form part of the agreement.

(3.) THE dispute and controversy between the parties is as to the amount paid by ae to BEPL till date; whether the machinery admittedly removed till date was at the instance of AE and/or by its nominees or by BEPL surreptitiously in breach of the Agreement.