NEPC MECON LIMITED Vs. MAGMA LEASING LIMITED

JUDGEMENT

(1.) The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended in 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?

(2.) The questions have arisen in connection with ex parte ad interim orders passed by the learned single Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suit against the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 it had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whic were inturn hired out by the respodent No.1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.1 was Rs. 6,87,52,980 in instalments over a course of three years with interest @ 11.16%.The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45,883/- each were also made over by the appellant to the respondent No. 1.According to the respondent No.1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January1997 but did not pay the balance.

(3.) After filing the suit for recovering the amount of Rs. 5,00,52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generators had been sold by the appellant to M/s. Fast Leasing Company of India Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of India Limited in respect of the same generators.