SREI INFRASTUCTURE FINANCE LTD Vs. BHAGEERATHA ENGINEERING LTD

JUDGEMENT

(1.) BY this common Order, it is proposed to dispose of both the C. M. Applications being No. 118 of 2008 and 119 of 2008 since in both the applications the same question of law and facts are involved.

(2.) BY application under Section 151 of the CPC registered as C M. Application No. 118 of 2008, the applicant SREI Infrastructure finance Ltd. (formerly known as International financial Ltd.) prays for intervention and impleadment as respondent No. 2 in RFA No. 5 of 2008. By another application preferred under Section 151 of CPC which has been registered as CM. Application no. 119 of 2008, the applicant has sought for an order to allow the receiver to take possession of the equipments and removal of the same so as to enable to comply the terms of settlement dated 29-3-2006, arbitral award dated 28-9-2006 and Order dated 23-2-2007 of the Hon'ble Calcutta high Court.

(3.) FACTS involved in these applications can be summarized as under : the applicant is a Ltd. Company duly incorporated under the provisions of the Company act and is dealing with business of financing, leasing and hire purchase of various equipments, vehicles and other business. The opposite party No. 1, Bhageeratha engineering Ltd. for the purpose of acquiring financial assistance entered into several hire purchase agreement. being No. HOC-004, HOC-005, HOB-660, HOB-659, HOB-293, HOB-661 and HOB. 673 dated 7-11-2002, 7-11-2002, 2-9-2002, 3-8-2002, 15-6-2002, 2-9-2002 and 6-92002 respectively, with the applicant and under the said agreements, the opposite party No. 1 obtained financial assistance on hire purchase basis from the applicant for acquiring 1 No. Escorts lcb Loader, 1 No. Greaves Bomang vibratory Soll Compactor BW 212-292a. 1 no. 8 T Komatsu Hydraulic Excavator (PC200-6), 2 Nos. Greaves Bomang Vibratory soil Compactor BW212-2 (2a), 1 No. Apollo Model AP- 550 Hydrostatic Paver finisher, 1 No. BEML BD6. 5 E-8 Bulldozer and i No. Escorts, JCB 3d Excavator Loader. In terms of the agreements between the parties the amount finaneed was required to be repaid by 48 instalments as described in the schedule of the agreements. Being financed, the opposite party No. 1. purchased the equipments on hire purchase basis. But the opposite party No. 1 failed and neglected to make repayment as per agreement for which the matter was referred to arbitrator namely Shri Pulin Behari Das, Advocate. Before the start of the arbitration proceeding, the applicant and the opposite Party no. 1 settled disputes by executing an agreement wherein terms of settlement incorporated on 29-3-2006. The terms of settlement dated 29-3-2006 were submitted before the learned arbitrator who accordingly passed the Award dated 28-9-2006 in terms of the settlement. In spite of the award and terms of settlement, the opposite party No. 1 failed to adhere to the terms of settlement for which the applicant was prompted to file an execution case being No. 16 of 2007 before the Calcutta High Court, Calcutta High court accordingly passed an order dated 20-3-2007 in the following terms :-