SREI INFRASTRUCTURE FINANCE LTD Vs. MANASWANI PATTNAIK

JUDGEMENT

(1.) The petitioner has filed this writ application under Articles 226 & 227 of the Constitution of India challenging the order passed by the learned Civil Judge (Sr. Division), Sambalpur vide order dated 20-5-2008 passed in Misc. Case No. 7 of 2008, under Annexure-5, which arises out of C. S. No. 19 of 2006.

(2.) The case of the petitioner in short is that it is a non-banking finance Company registerede under the Companies Act. The petitioner advance a loan to the opp. party to the tune of Rs. 14,00,000/- to enable the opp. party to purchase two numbers of Tata Tipper Trucks. The opp. party executed a hire purchase agreement with the petitioner on 13-10-2003, a copy of which has been annexed as Annexure-1 to the writ application. The opp. party paid Rs. 1,64,688/- towards down payment. The petitioner asserts that from the year 2005 the opp. party failed to pay the monthly instalment for which after intimating the opp. party, the petitioner repossessed both the vehicles in the month of February, 2006. Soon after the vehicles were repossessed, the opp. party filed C. S. No. 19 of 2006 in the Court of the Civil Judge (Sr. Division), Sambalpur seeking relief of declaration and other reliefs. Along with the suit, the opp. party filed an application for injunction registered as I. A. No. 7 of 2006 to restrain the petitioner from selling the vehicles and further to release the vehicles in favour of opp. party. The petitioner appeared in the suit and filed objection to the injunction application stating therein that the hire purchase agreement contains an arbitration clause for which the suit was not maintainable and the matter should be referred to an arbitrator. Learned Civil Judge by order dated 6-5-2006 though dismissed the interlocutory application filed by the opp. party yet directed release of both the vehicles in favour of the opp. party on a suitable term and condition. While directing the release of the vehicles learned Civil Judge further directed that the opp. party should pay 50% of the dues pending against him towards default amount to the petitioner within one month whereafter the vehicles were to be released. The learned Civil Judge also directed that the opp. party has to furnish an undertaking to the effect that any violation on her part in complying with the said order would not entitle the opp. party to get the vehicles released in her favour. This order has been enclosed as An-nexure-2 to the writ application.

(3.) The petitioner has alleged that although the opp. party deposited the amount quantified by the learned Civil Judge, yet the opp. party did not furnish any undertaking in terms of the order under Annexure-2 and after release of the vehicles on 4-7-2007 the opp. party did not pay the monthly instalments as well as the balance amount. For non-payment of the balance amount and monthly installments, the petitioner repossessed both the vehicles again on 18-4-2008. After the petitioner repossessed the vehicles, the opp. party filed an application under Order 39, Rule 2-A, C. P. C. for disobedience of order which was registered as Misc. Case No. 7 of 2008. Learned Civil Judge by the impugned order under Annexure-5 dated 20-5-2008 though declined to take action as visualized under Order 39, Rule 2-A, C. P. C, yet directed the petitioner to release both the vehicles in favour of the opp. party failing which, it directed that it would be deemed that the petitioner has deliberately violated the order. This writ application has been filed challenging this order passed by the learned Civil Judge.