CRP 215/2015. Gauhati High Court
| Case Number | CRP 215/2015 |
| Judgement Date | June 13, 2018 |
| Court | Gauhati High Court |
THE GAUHATI HI GH COURT
( THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)
C.R.P. No. 215 OF 2015
Sri Kailash Baruah
-Versus-
Hinduja Leyland Finance Co.
..Respondent
BEFORE
HON’BLE MR. JUSTI CE KALYAN RAI SURANA
For the petitioner : Mr. KK Mahanta,
Mr. K. Singha,
Mr. KM Mahanta,
Mr. P. Baruah, Advocates.
For the respondent : Mr. PJ Barman,
Mr. M. Chetia,
Ms. P. Phukan, Adv.
Date of hearing : 07.06.2017
Date judgment : 13.06.2017
JUDGMENT AND ORDER
Heard Mr. K.K. Mahanta, the learned Senior Counsel for the petitioner, namely, Kailash Baruah and Mr. P.J. Barman, the learned Counsel for the respondent, namely, Hinduja Leyland Finance Co. Ltd.
2) By filing the present application under Article 227 of the Constitution of I ndia, the petitioner has assailed the order dated 17.11.2014 passed by the learned Civil Judge, Sivasagar, in Title Suit No. 7 of 2013, by
CRP No. 215/2015 Page 1 of
… Petitioner
virtue of which the parties were referred to arbitration under section 8 of the Arbitration & Conciliation Act, 1996.
3) The petitioner herein is the plaintiff in the said suit, which contained prayer for passing a decree of declaration that the repossession of the vehicle by the defendant (respondent herein) is void ab initio, illegal and cannot be acted upon, for recovery of the vehicle from unauthorized possession of the defendant, for passing a decree to handover the vehicle in good and running condition as well as ad-interim injunction and other reliefs as mentioned in the plaint. The case of the petitioner in the plaint is that he was the registered owner of a Tata winger (Mini Bus) bearing registration No. AS-04-AC-2337. The same was purchased in the month of May, 2011 to give employment to his son. The total cost of the said vehicle was Rs.5,56,500/ - and the petitioner had availed a finance of Rs.4,38,000/ - from the respondent. The petitioner admitted that he had executed a loan agreement, agreeing to repay the loan in 48 months by paying 47 monthly installments of Rs.13,994/ - each. After paying a sum of Rs.2,48,395/ - till the month of October, 2012, the petitioner was diagnosed of cancer as a result of which there was default in repaying the loan. However, in the middle part of December, 2012, the respondents arbitrarily dispossessed the petitioner of his property, as such, the petitioner had filed the said suit.
4) The respondent entered appearance in the suit and filed an application under section 8(1) of the Arbitration & Conciliation Act, 1996 and contended that in cause 23.0 of the Loan Agreement dated 31060 dated
31.05.2011, there existed a clause for settlement of all disputes through arbitration. The petitioner contested the said petition by filing written objection. The learned Civil Judge, Sivasagar, by the impugned order referred hereinbefore, referred the parties to arbitration, which is challenged herein.
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5) On the prayer made by the learned Senior Counsel for petitioner, this Court by order dated 04.11.2016 had directed the respondent to produce the original copy of the Agreement. Accordingly, in course of time, the said Agreement bearing No. ASGWJO00249 was produced. The learned Senior Counsel for the petitioner had informed this Court that he along with his instructing counsel had inspected the same.
6) The learned Senior Counsel for the petitioner has made a short submission during the hearing of the matter. The points urged were -
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none of the pages of the said agreement was signed by the lender, but only it contained rubber stamp impression of lender as "Abdul Mazid, Emp. Code: 16074", but it contained no signatures and, as such, without admitting but assuming that the said agreement could have been valid for any other purpose, the same was not a valid document for under section 7(4)(a) read with section 2(b) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "1996 Act " for brevity); and
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that along with the application under section 8(1) of the said 1996 Act, the respondent had filed only a photocopy and did not produce the original of the same before the learned Trial Court and, as such, in...
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