MAA SARADA & CO. Vs. SAHIDUL HOQUE

JUDGEMENT

(1.) HEARD Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. B. Sarma, learned counsel for the petitioner. Also heard Ms. P. Bhattacharya, learned counsel appearing for the respondent.

(2.) THIS petition is filed under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure against the impugned orders dated 22.04.2015 passed by the learned Munsiff No. 1, Dhubri in Misc. (J) Case No. 25/2015 in T.S. No. 28/2015 and the order dated 01.09.2015 passed by the learned Civil Judge, Dhubri in Misc. Appeal No. 7/2015, whereby the application of the respondent under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 being Misc.(J) 25/2015 arising out of T.S. No. 28/2015 was allowed restraining the petitioner from taking possession of the vehicle in question and, on appeal being preferred by the petitioner, being Misc Appeal No. 7/2015, the learned Civil Judge, Dhubri, vide order dated 01.09.2015 dismissed the appeal and upheld the order dated 22.04.2015 passed by the Learned Munsiff No. 1, Dhubri.

(3.) TO the utter surprise and dismay of the petitioner, the petitioner came to learn that the respondent have preferred a suit before the Learned Munsiff No. 1, Dhubri being T.S. No. 28/2015, whereby the respondent denied the existence of the second loan dated 03.04.2014 and prayed for a decree for specific performance of the contract directing the petitioner to receive the outstanding amount of Rs. 1,40,700/ - from the respondent under the hire purchase agreement dated 18.03.2011, for a decree directing the petitioner to issue loan clearance certificate to the respondent and a perpetual injunction restraining the defendants from taking over the possession of the said truck from the respondent. Along with the aforesaid, the respondent also filed an application under Order 39, Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 being T.S. No. 25/2015 in T.S. No. 28/2015 praying therein for an ad -interim temporary injunction restraining the petitioner from taking possession of the Truck bearing No. AS -17B -3792 (Old No. NL -01D -9910). The petitioner duly appeared and filed written statement in the title suit as well as objection in the aforesaid miscellaneous application. The petitioner denying the averments/contentions/allegations brought out by the respondent has stated that since there is an arbitration clause in the aforesaid contracts, the matter should be referred to Arbitration for settlement of the dispute as the learned Court of Munsiff was not the competent Court to entertain the instant suit as per the provisions of the Arbitration and Conciliation Act, 1996. It was further contended that the respondent has filed the case by suppressing the material aspect that they have violated the terms and conditions of the hire purchase agreement and filed this suit illegally violating the Order 7, Rule 14 of the Code of Civil Procedure with a view to mislead the Court. Denial of execution of the written document (hire purchase agreement) cannot be accepted unless contrary is proved. It is only on the basis of hire purchase agreement executed on 18.3.2011, the respondent has availed the loan and purchased the vehicle on terms and conditions including the arbitration clause is entered into between the parties. The respondent has also did not deny to repay the loan on the basis of hire purchase agreement dated 18.3.2011, but has denied the execution of another hire purchase agreement dated 3.4.2014 on the basis of which the respondent has taken another loan of Rs. 5,15,375/ -, while in both the agreement there is an arbitration clause and, as such, filing of civil suit in the Court of Munsiff is itself violative of the terms and conditions entered into between the parties and similarly, the Court of Munsiff cannot assume jurisdiction to decide such arbitration matters.