- (1.) The appellant obtained credit facilities from Magma Fincorp Limited for purchase of one JCB 3DX Backhoe Loader for commercial purpose. The parties entered into a Hire Purchase agreement on November 13, 2006. Under the agreement, total hire purchase price of Rs.19.32 Lacs was to be repaid by 35 monthly installments of Rs.55200 commencing from October 15, 2006 and subsequent installment by 15th day of each succeeding English calendar month. The Respondent No. 2 guaranteed the loan so advanced by Magma in favour of Ravi. According to Magma, Ravi took possession of the asset in terms of the agreement. He paid five installments and a part of the sixth installment and thereafter defaulted in making payment of the balance. Magma issued a notice of demand claiming a sum of Rs.1698655 as on October 31, 2007 as claimed in the notice of demand appearing at page 58 60 of the paper book. From the notice of demand we find that Magma claimed all arrear installments as per the agreement apart from delayed payment charge for Rs.65,255. They also claimed damage for Rs.1840 per day on and from October 29, 2007. Magma subsequently referred the dispute to arbitration vide letter dated March 29, 2008 as claimed by them. Magma also approached Learned Single Judge inter-alia praying for interim protection under Section 9 of the Arbitration and Conciliation Act 1996 (hereinafter referred to as the said Act of 1996).
(2.) We also find that the named arbitrator Sri Pulin Bihari Das published an award on December 5, 2008 inter-alia for a sum of Rs. 1837276. The arbitrator also declared that the loader being the subject matter of the Hire Purchase agreement belonged to Magma. The arbitrator awarded interest at the rate 36% per amount on the awarded sum from the date when the appellant committed default till the date of the award as well as interest at the rate of 24% per amount from the date of the award till payment. The arbitrator awarded cost of Rs.4000. Needless to mention, it was an ex-parte award.
(3.) By an order dated May 13, 2008 the Learned Single Judge appointed an advocate of this Court as receiver to make an inventory of the equipment and submit a report. The petition came up for hearing again on July 31, 2008 when the respondent appeared and prayed for time to resolve the dispute amicably. Accordingly, the matter was adjourned. By a subsequent order dated August 5, 2008 the learned Single Judge directed inventory of the vehicle coupled with an order for taking possession of the same. Accordingly, the receiver took possession on August 14, 2008 as we find from the report appearing at pages 72-73 of the paper book. The learned Single Judge passed a subsequent order on February 27, 2009 issuing an order of restraint on sale of the equipment. His Lordship also recorded that an award was published in the meantime as reported to His Lordship. Ultimately the interim order of restraint was vacated and the Court permitted the receiver to sell the equipment/vehicle by public auction. The matter went up to the Division Bench. By an order dated February 7, 2011 the Division Bench permitted the appellant to bring suitable purchaser. His Lordship also directed application for setting aside to be heard by the learned Single Judge. There was another round of litigation on the confirmation of sale. Ultimately the Division Bench vide order dated May 16, 2011 confirmed the sale in favour of the appellant for a sum of Rs.6.1 which was Rs.10,000 more than the offer given by an outsider and confirmed by the learned Single Judge. The application for setting aside of the award made by the appellant as also the application for appropriate injunction made by the respondent came up for hearing before the learned Single Judge. We are told by the respondent, learned Single Judge granted repeated adjournments to have a final solution through negotiation. Ultimately His Lordship passed an order on February 2, 2002 with the consent of both the parties. The appellant however would dispute the same.;