NARAD BHAGAWAN SUKHIA Vs. SHIV PUNJAN SHARMA AND OTHERS
LAWS(CAL)-1996-12-42
HIGH COURT OF CALCUTTA
Decided on December 13,1996

NARAD BHAGAWAN SUKHIA Appellant
VERSUS
SHIV PUNJAN SHARMA AND OTHERS Respondents


Referred Judgements :-

RAYARAPPEN V. MADHAVI AMMA [REFERRED TO]


JUDGEMENT

Arun Kumar, J. - (1.)This Revisional Application under Sec. 115 of the Code of Civil Procedure (hereinafter referred to as Code) by the Petitioner/Defendant No. 3 (hereinafter referred to as Defendant No. 3) is directed against the Order dated 26th April, 1996 passed by the Ld. Judge, 4th Court, City Civil Court at Calcutta, in Title Suit No. 889 of 1995 before him, for the reasons stated and on the grounds made out therein. By the said impugned order the Ld. Judge had rejected the defendant No. 3's relevant application under Sec. 151 of the Code for a reasons recorded therein. The facts giving rise to the relevant suit and the instant revisional application may shortly be set out as follows:-
(2.)The Plaintiffs/Opposite Parties Nos., 1 and 2 herein (hereinafter referred to as Plaintiffs) had, admittedly, entered into a Hire Purchase Agreement will be defendant No. 1/Opposite Party No.3 herein (hereinafter referred to as TELCO) on 29th Nov., 1992 for purchase of the Tata Truck in question at a total valuation of Rs. 4,51,661.00, payable in 35 monthly instalments of Rs. 13,050.00 in terms thereof. They (Plaintiffs) got possession of the vehicle in question after making initial payment of Rs. 81,852/-. Undisputedly, the defendant No. 2/Opposite Party No. 4 herein was the Agent of TELCO, and the defendant No. 3/Petitioner was the guarantor in the said hire purchase agreement. Being a guarantor therein the defendant No. 3 had made himself jointly and severally liable for liquidation of the said loan in case of default in payment thereof by the plaintiffs. It is alleged by the plaintiffs that TELCO, with the help of the defendant No. 3, had taken possession of truck in question from their possession on 21-11-94 on the plea that they had defaulted in paying instalments in terms of the relevant Agreement, The plaintiffs had thereupon filed the relevant suit before the Court below for the reliefs prayed for therein.
(3.)The Plaintiffs, on 18-3-95, had filed one application for temporary injunction under Order 39, Rule 1 and 2 , read with Sec. 151 of the Code and another application for appointment of Receiver in respect of the vehicle in question under Order 40, Rule 1 of the Code. Upon hearing the Ld. Advocate for the Plaintiffs, the Court below by Order dated 27th March, 1995 had directed issue of notices upon the defendants to show cause as to why the plaintiffs prayer for temporary injunction should not be granted and had appointed Sri J. Chakraborty, Advocate, Receiver in respect of the vehicle in question, and had also passed an interim order thereunder restraining the defendants from disposing of the vehicle in question in terms thereof. The Plaintiffs had thereafter filed another application before the Court below under Sec. 151 of the Code praying for modification/variation of the Order passed on 27-3-95 by directing the Receiver to hand over possession of the vehicle in question to them so as to enable them to play the same and pay the dues of TELCO, against which objection was filed by the defendant No.1/TELCO and the defendant No. 2. The Court below by Order dated 15-2-96 had disposed of the Plaintiffs aforesaid application for modification/veriation of the Order dated 27-3-95 by directing the Receiver to deliver possession of the vehicle in question to them (Plaintiffs) on the condition indicated therein. The defendant No. 3 had thereupon filed the relevant application under Sec. 151 of the Code before the Court below on 1-3-96 for directing the Receiver and the Plaintiffs to fourthwith make over possession of the vehicle in question to him and for vacating the Court's earlier Orders dated 27-3-95 and 15-2-96 in terms thereof for the reasons stated therein. He had contended therein that the vehicle in question had been transferred to him, and he has become the registered owner thereof, subject to Hire Purchase Agreement with R.K. Investment, in the circumstances indicated therein.
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