MITA MITRA Vs. SATYANARAYAN KAMAL KUMAR

JUDGEMENT

(1.) THE material, facts leading to all the three applications taken up together at the instance of the parties are inter alia as follows :- On 1st September, 1983 Hire Purchase Agreement was entered into in respect of one new TDV chasis. Under the said agreement the hirer agreed to pay apart from the, initial hire of Rs. 54,608/-, a sum of Rs. 1,68,0,00/- in 24 equal hires of Rs. 7,000/- each commencing from 25th September, 1983. THEre was also an arbitration agreement entered into on the same day between the parties. On December 1, 1983 an affidavit was affirmed by Smt. Mita Mitra before the Judicial Magistrate, First Class, Alipore, 24- Parganas confirming the execution of the Hire Purchase Agreement and the arbitration agreement and the amount payable under the said agreement. On December 11, 1984 the said hire purchase agreement was terminated by a letter issued by Meharia & Company, Advocates for the financier. On 12th December, 1984 financier referred the disputes to the arbitration of Mr. S. K. Laik, Advocate. On December 19, 1984 an application under Section 41 of the Arbitration Act, 1940 was moved and an ad interim order was made appointing Receiver. On December 28, 1984 the hirer Smt. Mita Mitra sent a letter acknowledging receipt of the said letter dated 11th December 1984 and assured that the amount would be paid. On February 6, 1985 ad interim. order passed on 19th December, 1984 was confirmed on notice to the hirer and the guarantor. On 8th April, 1985 the arbitrator passed his award. Possession, of the said motor vehicle was obtained with the help of the Officer-in-Charge, Ranaghat Police Station. On June 5, 1985 consent decree was passed according to the terms of settlement. THE terms of settlement was also signed by Chinmoy Mitra, husband of Mrs. Mita Mitra and one Mnianshu Ranjan Acharya as the sureties under which a sum of Rs. 1,97,520/- was to be paid in 30 equal instalment of Rs. 6,584/- each commencing from 10th June, 1985 inclusive of interest in full and final settlement. Pursuant to the terms of the settlement Chinmoy Mitra, husband of Smt. Mita Mitra obtained possession of the motor vehicle from the Officer-in-Charge, Ranaghat Police Station. On 21st January, 1987 in view of the default made the motor vehicle was again taken possession of by the authorised agent of the Receiver with the help of Officer-in-Charge, Narkeldanga Police Station. On February 23, 1987 consent decree passed on 5th June, 1985 was modified by consent of the parties under which it was agreed that the respondents would pay a sum of Rs. 1,73,000/- in full and final satisfaction of the claim. THE said terms of settlement was signed by Smt. Mita Mitra, Chinmoy Mitra, husband of Smt. Mitra and one Chitan Kumar Tiwari as sureties. Pursuant to the said terms of settlement Smt. Mita Mitra obtained possession of the motor vehicle upon payment of Rs. 10,000/-. On August 19, 1987 the said motor vehicle was again taken possession of with the help of Officer-in-Charge, Ranaghat Police Station in view of the default made by the respondents. On 27th February, 1987 Smt. Mita Mitra paid a sum of Rs. 5,275/- out of balance sum of Rs. 1,63,000/- payable in terms of the consent order as modified on 23rd February, 1987. On 2nd September, 1987 an application was moved by Smt. Mita Mitra for payment of Rs. 1,57,000/- in easy instalments and for release of the motor vehicle. No notice of the said, application has been served on the sureties. On 16th September, 1987 an order was passed by S. K. Hazari, J. on the application made by Smt. Mita Mitra to pay the admitted sum of Rs. 1,57,0.00/- in monthly instalment of Rs. 10,000/- immediately and thereafter at the rate of Rs. 3,000/- per month for six months and thereafter at the rate of Rs. 4,000,/- per month till the entire amount is fully paid. On 17th April, 1987 Mr. P. K. Roy, Advocate addressed a letter to Meharia & Company, Advocate for the financier requesting the said Advocate to accept payment of Rs. 10,000/- and release the motor vehicle to Chinrnoy Mitra, the authorised representative of Smt. Mita Mitra. On 19th September, 1987 the motor vehicle was released to Smt. Mita Mitra by the Receiver. On 23rd Februarv, 1988 an order was made directing payment to be made by cash or bank draft or cheque payable at Calcutta. Between 16th September 1987 anti July 20, 1988 the respondents paid an aggregate sum of Rs. 36,000/-. On 16th August, 1988 the petitioner made an application in the above Award Case inter alia for the following reliefs (a) That the order dated 16th September, 1987 passed by the Hon'ble Mr. Justice Sachi Kanta Hazari be modified as follows : (b) That the balance amount of Rs. 1,20,500/- paid in 60 equal instalments first of such instalments to be paid on or before 15th September and thereafter by the 15th of each subsequent month; (c) an order of injunction be passed restraining the receiver Sashi Kanta Todi from taking possession of the vehicle and/or to dispose of and/or to deal with the vehicle in any manner till the disposal of this application ; (d) an ad interim order in terms of prayer (c) ; (e) each party to bear their respective costs ; (f) to pass such further and/or other order or orders as Your Lordships may seem fit and proper."

(2.) THE said application was moved ex parte whereupon an order was passed by Sachi Kanta Hazari, J. on 16th August, 1988 to the following effect :

(3.) THE said application appeared as new motion on 12th September, 1988 along with the other application which was already adjourned till that date. On 12th September, 1988 again the prayer was made for vacating the ad interim order but such prayer was not allowed. In the circumstances the respondent No. 1 firm preferred two separate appeals from the order dated 16th August, 1988 and from 5th September, 1988. Both the said appeals were disposed of by orders dated 20th September, 1988. THE main order disposing one of such appeal is set out hereinbelow :