M.G.F. (India) Limited vs Sudesh Kumar and Another

S.K. Agarwal, J.—This is a petition u/s 20 of the Indian Arbitration Act, 1940 for reference of disputes to the Arbitrator named in the hire purchase agreement.

The petitioners are occupants of flats constructed in Paschim Vihar in the land of Ashoka CGHS Limited, a group housing society. The construction of the dwelling units is stated to have been completed on 27.11.1986 and the allotment was confirmed on 10.3.1987.

In May 1999 some public advertisements were issued and the petitioners claim that the pursuance to such public advertisements the petitioners have constructed additional structures and that the same have not been regularised despite the society approaching the respondents. The petitioners were served notices by the DDA on account of this extra construction and have approached this Court for quashing of the said notices and for regularisation of the construction.

In the counter affidavit filed by the respondent DDA, it is stated that the aforesaid constructions are unauthorised. It is further stated that assuming that some extra FAR is granted to the society, if within the compoundable limits, the same can be granted to the society as a whole and not to individuals allottees.

I find force in the submission of the learned counsel for the respondent DDA that if any extra FAR is to be granted, it must be granted to the society as a whole. It is for the members of the society thereafter to decide whether the extra FIR is to be shared by all the allottees or has to be utilised by few of the persons including the petitioners.

In view of the aforesaid, it is directed that the petitioners and the representations of the society will appear before the Director (Building) of the DDA on 22nd October, 2002 along with requisite documents. The said authority will examine the case of the society and decides whether any extra FAR within the compoundable limits is permissible. If so, the benefit to the society will be granted on payment of compounding fee/other charges. The needful be done within a period of two months from today. Once the aforesaid decision is taken, it will be for the society to decide as to how the extra FAR, if any, is to be utilised. In case the petitioners have constructed more than their share and the society does not want to grant them the benefit of extra FIR beyond their share, the petitioners shall remove the extra construction to the excess extent within a period of six weeks thereafter. The respondent authority shall thereafter within two weeks carry out an inspection of the construction of the society to ensure that it conforms to the construction permissible within the sanctioned limited including the compoundable deviations.

In case the petitioners conforms to the aforesaid, no action shall be taken against them in terms of the impugned notice. However, on the failure of the petitioners and society to do the needful, it is open to the respondents to proceed in pursuance to the impugned notice.

Writ petition stands disposed of in the aforesaid terms.

C.M.No. 11126/2001

No further orders are called for in this application in view of the disposal of the writ petition.

Application stands disposed of.

dusty to learned counsel for the parties.

It is pleaded that petitioner is a registered company; respondent No. 1, Sudesh Kumar, entered into a hire purchase agreement with the petitioner on 30th June, 1987 for taking on hire purchase TATA(d) Truck on 1987 model (registration No. PCK 2335); respondent No. 2 signed the hire purchase agreement as a guarantor; the total amount of the hire purchase was in the sum of Rs. 2,70,300/- payable in 35 months; the first payment was to be made on 1st September, 1987 being in the sum of Rs. 8,500/- and subsequent payments were to be made on/or before first of each succeeding calendar month of Rs. 7,700/-. As per Clause 3 of the terms and conditions of the said agreement, the hirer acknowledged that he would hold the truck as hirer and bailee of the owners and shall not have any right title or interest, as purchaser thereof, until the owners transfer to him all their rights, title and interest in the said vehicle as provided in Clause 4 of the Agreement. Respondent No. 1 only paid Rs. 1,51,700/- towards the monthly hire purchase and additional hire purchase charges. He failed to pay the balance amount of hire purchase charges, amounting to Rs. 1,40,695/- despite repeated requests. It is pleaded that respondent No. 1 was liable to pay a sum of Rs. 6,90,397/- till 27th October, 1994.

It is also pleaded that vehicle was repossessed on 7th May, 1993 by the petitioner company; in the year 1998, the respondents served notice on the petitioner claiming damages @ Rs. 10,000/- per month stating therein that due to terrorism in Punjab, the respondent No. 1''s business was badly affected, Therefore, there was default in payment of Installment; the petitioner took away the truck from respondent No. 1 stating that the same would be piled by the company itself, and he would be paid Rs. 10,000/- per month after deducting remaining Installments of the loan amount. The respondents claimed damages at the said rate. Despite service of notice, respondents did not appear.

Petitioner in support of its case has filed affidavit by way of evidence; Ex. AW-1/1, power of attorney; EX.AW-1/3, Original hire purchase agreement; Ex.AW-1/4, Original proposal form; Ex.AW-1/5, office copy of regd. notice dated 15th May, 1993; Ex.Aw-1/7, office copy of letter dt.8.10.1991, Ex.AW-1/8, office copy of telegram dt.26.9.1991; Ex.AW-1/9, additional affidavit dt.11.9.2002; and Ex.AW-1/10, notice of the respondents.

The respondents have chosen not to appear and contest this petition. No cause is shown. Accordingly, original hire purchase agreement Ex.AW-1/3 is ordered to be filed. Mr. Inderjit Gulati, Advocate, one of the named arbitrators is appointed as the arbitrator to adjudicate claims and counter claims of the parties, including the disputes, whether respondents'' committed any breach of agreement dated 30th June, 1987 by failing to pay Installments due and payable; whether the truck was validly re-possessed by the petitioner on 7th May, 1993; whether the petitioner is entitled to recover the balance hire purchase amount of Rs. 1,40,695/- along with interest after re-possessing the truck and the value of the truck on the date of re-possession; whether the amount was adjusted towards balance amount due by the petitioner and whether the respondents are entitled to counter-claims, if so to what amount. Ordered accordingly.

Petition stands disposed of.