ALEMA KHATUN Vs. TATA MOTORS FINANCE LIMITED

JUDGEMENT

(1.) Five civil revision petitions involving identical question of law have been heard together on the prayer of the learned counsel of the parties and accordingly they are being disposed of by this common judgment. However, essential respective facts of each of the five revision petitions are stated separately at the threshold.

(2.) Crp No. 196/2015 (Alema Khatun and others vs. Tata Motors Finance Ltd.):-

(3.) On being summoned, the present petitioners as debtors submitted a written objection, inter alia, on the ground that the execution case has been instituted without complying with the mandatory provisions of Order XXI Rule 5 and 6 of the CPC. One of the other objections was that since the decree holder prayed for execution of the judgment debtor by getting him arrested and retained, compliance of the provisions of Rule 11 and 14 of Order XXI was necessary. Besides, it was also pleaded that the arbitration award itself was obtained by fraud without taking into consideration that the truck became traceless with the driver for which the judgment debtor had lodged an FIR with Sagolia OP immediately after disappearance of the truck with intimation to the decree holder, the Tata Motor Finance Ltd. The judgment debtor had furnished all relevant documents to the Tata Motors on 08.04.2013 and thus the decree holder was very much aware as to under what circumstances the judgment debtor could not make payment of the EMI. The decree holder was also assured by the judgment debtor at that time that the loan would be repaid in full once insurance claim against disappearance of the truck is settled. As per the arbitration clause, there was no appointment of arbitrator from the side of the judgment debtor and the judgment debtor had never signed the arbitration agreement. With these objections, the judgment debtor prayed for dismissal of the execution case.