RAKESH TIWARI Vs. ASHOK LEYLAND FINANCE LTD
LAWS(CHH)-2005-8-22
HIGH COURT OF CHHATTISGARH
Decided on August 12,2005

RAKESH TIWARI Appellant
VERSUS
ASHOK LEYLAND FINANCE LTD Respondents

JUDGEMENT

L.C.BHADOO,J. - (1.) WRIT Petition No. 579/2005 filed by Ashok Leyland Finance Ltd against Rakesh Tiwari & Writ Petition No. 1804/2005 filed by Rakesh Tiwari against Ashok Leyland Finance Ltd. are connected with each other and relates to same issue, therefore, they are being disposed of by this common order.
(2.) BRIEF facts necessary for disposal of these petitions are that M/s. Ashok Finance Limited, having its branch office at Raipur and main office at Chennai engaged in financing the vehicles purchased by the general public. Accordingly, Rakesh Tiwari plaintiff in the suit (hereinafter shall be referred as 'the plaintiff) contacted the Ashok Leyland Finance Ltd. defendant in the suit (hereinafter shall be referred as 'the defendant) for financing the vehicles and accordingly, the defendant financed an amount of Rs. 6 Lac against the truck No. C.G. 04-9619 to the plaintiff and entered into a hire purchase agreement on 28-3-2001. The total value of the agreement was Rs. 7,39,000/- inclusive of all the charges. The defendant had also financed another truck bearing registration number CG04-ZC-3393, hire purchase agreement was executed on 31-1-2002 and the total value of agreement was Rs. 131,520/-. Thereafter, the plaintiff started paying installments. The plaintiff's case before the trial Court was that against the first hire purchase agreement he paid in all Rs. 7.16,982/- including Rs. 11,000/- of the insurance amount and only an amount of Rs. 23,018/- was outstanding against the plaintiff against Agreement No. 1, out of which he paid Rs. 4,500/- on 28-5-2004 thereby only Rs. 18,518/- remained unpaid against the first agreement. On 7-7-2004 the plaintiff went to the office of defendant to pay the remaining amount of s. 18,518/ - against the first agreement and Rs. 19040/- against the second agreement, the defendant gave the statement of account dated 22-6-2004 to the plaintiff according to which an amount of Rs. 1,39,099.99 paise was outstanding against the plaintiff against the first agreement and the first agreement and Rs. 50,429.99 paise was outstanding against the second agreement. On the same day when the plaintiff was giving explanation to the defendant, the plaintiffs truck bearing registration number CG04-9619 was stopped by the defendant and defendant started threatening that if the said amount is not paid then the vehicle will be repossessed. The plaintiff stated that entire amount has been paid to the defendant and they had wrongly calculated the outstanding amount. Ultimately, the defendant agreed that if Rs. 50,000/- is paid against the loan of both the trucks then the truck in question will be released and thereafter, no amount will remain as unpaid. On this the plaintiff paid Rs. 50,000/- through a post dated cheque and approached the defendant on 12-7-2004 for issuance of "no objection certificate", but the defendant had refused to give "no objection certificate". When no objection certificate" was not given, the plaintiff filed a civil suit in the Court of learned 3 rd Civil Judge Class-II, Raipur on 13-7-2004 for injunction to the effect that no amount is outstanding against the plaintiff against the said two agreements and the defendant be prohibited from taking any truck in their possession or sale. Along with the suit an application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter shall be referred as 'the Code') was also filed. After service of the summons of the said suit, the defendant appeared before the Court below on 31-7-2004 and filed a detailed reply to the application filed by the plaintiff under Order 39 Rules 1 & 2 read with Section 151 of the Code. On 8-12-2004 the defendant filed an application under Section 151 of the Code raising objection with regard to the maintainability of the suit on the ground that there is an arbitration clause in the hire purchase agreement. After hearing learned counsel for the parties, learned trial Court while disposing of the application of plaintiff filed under Order 39 Rules 1 & 2 read with Section 151 of the Code and the application filed by the defendant under Section 151 of the Code allowed the application of plaintiff and directed the defendant to restore the possession of the plaintiff's vehicle number CG04-9619, which was taken into repossession on 24-7-2004 during the pendency of the suit by the defendant finance company. The trial Court further restrained the defendant not to stop another vehicle of the plaintiff bearing registration number CG04-ZC-3393. The learned Civil Judge rejected the application of the defendant filed under Section 151 of the CPC also . by the same order. Being aggrieved by the said order the petitioner herein/defendant filed a writ petition bearing W.P. 579/2005 before this Court questioning the legality, propriety and correctness of order dated 3-1-2005. However, after filing of this writ petition the petitioner herein has also filed a miscellaneous appeal on 11 -1-2005 before the learned District Judge, Raipur against the same order and that appeal came to be registered as M.C.A. No.6/2005. The said appeal was transferred to the Court of learned 1st Additional District Judge, Raipur, who allowed the said appeal vide order dated 21-4-2005, set aside the order dated 3- 1-2005 passed by the trial Court in respect of issuance of temporary injunction and rejected the application filed by the plaintiff/respondent herein under Order 39 Rules 1 and 2 read with Section 151 of the Code. Against the said order the plaintiff has preferred a writ petition before this Court bearing W.P.No. 1804/ 2005 questioning the legality, propriety and correctness of order dated 21-4-2005 passed by learned 1st Additional District Judge, Raipur thereby reversing the order passed by learned trial Court on 3-1-2005.
(3.) I have heard learned counsel for me parties. In the first instance, I will take up the Writ Petition No. 579/2005.;


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