KRANTI MOHAN GURUPRASAD MEBRA Vs. FATEHCHAND VASURAM BEHAL

JUDGEMENT

(1.) For some reason of the other, the partners of a partnership firm had fallen out, and it is on account of the subsequent events that this proceeding has come into existence. The plaintiff who is the respondent herein was one of the partners along with the ist appellant, tha is the 1st defendant in the suit along with certain other persons in a partnership firm which was dealing in textiles and the concern was knows in the mercantile world as Bhuvaneshwari Silk Mills. This partnership firm came to be dissolved on Aug., 25, 1977 by a deed of dissolution with the net result that under the settlement, the plaintiff had become the owner of the powerlooms 16 in number which were initially a part of the partnership property. First in all 25 looms were put in operation by the partnership firm and 8 looms had been entrusted to the 1st defendant under the said settlement.

(2.) On Oct., 5, 1977, the plaintiff and the 1st defendant recorded a separate agreement of hire purchase in respect of a out of the said looms with the consideration fixed at Rs. 1,20,000/-under a stipulation that the same should be discharged by payment of monthly instalments of Rs. 2500/- with interest at 18 percent on the unpaid amount. The monthly instalments were to be paid be or before the 10th day of every month. And it was to commence from Nov., 10 1977. The agreement contains several other clauses which are normally incorporated in a hire purchase agreement. Under D. 5, the plaintiff that had a right to terminate the agreement will, or without notice and to relake and resume the possession of the looms, if there is a default of payment for 3 instalments, and further it gave a right to the plaintiff even to construct or erect a brick wall in the slied where the looms were installed right from the beginning in such a manner so that the said a looms could be acparated from the other looms belonging to the 1st defendant. The agreement also contained several other clauses, the consideration of which need not detain us in this proceeding.

(3.) On the date of the agreement a cheque for Rs. 2500/- lowards the inilial payment under the agreement was given, and it is claimed that the said cheque bounced and was dishonoured, and no furhter payments towards instalments have ever been paid meaning thereby that in spite of this specific agreement executed between the parties, it had not been honoured by one party who had taken the looms on hirs, and thereby committed the breach, and according to the plaintiff's contention, he was vested with the rights ex facie to proceed against the defendants for the purpose of resuming the property. The agreement also stipulated that in case the contract had to be terminated on account of lapse on the part of the defendants, then a certain amount of damages was reguired to be paid as contained in the condition in Cl. 6 under which the hirer was obliged to pay to the owner the stipulated hire including interest up to the date of such determination including the apportioned hire for any broken period of the mont and 40 per cent of the balance of total unpaid hire as mentioned in cl. 3 as compensation for extra depreciation in the value of the said looms.