Calcutta High Court
Magma Shrachi Finance Ltd vs Phurden Lama & Anr on 28 January, 2011
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
APO No. 16 of 2011
AP 559/2008
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
MAGMA SHRACHI FINANCE LTD.
Versus
PHURDEN LAMA & ANR.
BEFORE:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
The Hon'ble JUSTICE KANCHAN CHAKRABORTY
Date : 28th January, 2011.
The Court :This appeal arises out of an order
passed by the learned Trial Judge dated August 18, 2010, whereby
and whereunder the prayer of the appellant for suitable
modification and/or clarification has been refused.
It is submitted by Mr. Sinha that the award has
been set aside and the money lying in the hands of the Receiver
has to be handed over to his client as the respondents do not have
any claim in the vehicle in question.
It is the case of the respondents representeed by Mr. Ahmed that the delivery of the vehicle was never given though 2 there has been an agreement for delivery of the vehicle. He admits fairly that physical possession was not given to his client. In view of this breach of the agreement, his client has already filed a suit in the appropriate Court in Delhi. In that suit, Mr. Sinha's client being the appellant was a party and the dealer of the vehicle in question was also a party.
When Mr. Ahmed says that the vehicle was not delivered to his client, whether rightly or wrongly, we hold prima facie that title to the said vehicle has not passed on to Mr. Ahmed's client. This finding of course may not be treated by the appropriate court to be decision of the matter in the suit. All points are kept open for adjudication of this issue. Whether failure to deliver the vehicle was justified or not can be decided by that court or any other forum.
Mr. Sinha on the other hand submits that the hire purchase agreement had been entered into and the vehicle was delivered to the respondents pursuant thereto, and there has been a breach on the part of the respondents of the said agreement. Accordingly, as the disputes have arisen the matter is referred to arbitration. The learned Arbitrator published the award once. But by order of the Court, the same was set aside and a new Arbitrator was appointed for adjudication of the dispute afresh.
Upon hearing the learned counsel for the parties, the point is whether the order passed earlier by the learned Trial 3 Judge on April 21, 2010 is required to be modified or not. According to us, when the respondents do not make any claim over the vehicle, the sale proceeds of the vehicle cannot be claimed by them. The sale proceeds lying in the hands of the Receiver must be given to the financier. Any other mutual claim of the parties may be sorted out either by suit or by arbitration as legally permissible. We notice that the learned Advocate of this Court has been appointed learned Arbitrator in place and stead of the original learned Arbitrator. It appears that there are three parties in the hire purchase agreement and also in the arbitration agreement itself. The learned Trial Judge has not recorded the consent of any of the parties while appointing the new Arbitrator. Moreover, the guarantor who was a party to the proceedings before the learned Arbitrator did not record any consent. Therefore, replacement of the person of the learned Arbitrator is not legally sustainable in the absence of any agreement of all the parties. We therefore delete the name of the learned Arbitrator. It would be open for the parties to approach the appropriate forum if they seek to replace the original Arbitrator.
Accordingly, the Receiver is directed to make over the balance amount lying in his hands, fetched from the sale proceeds, after deducting all legitimate dues. We do not find whether remuneration of the Receiver has been paid or not and that can only be ascertained from the Receiver alone. 4
Let the matter reappear for this purpose only, one week hence. Till then the Receiver will not make over the funds.
Therefore, the time limit fixed by the learned Trial Judge in our view is without jurisdiction and this cannot be passed de horse either the arbitration agreement or the provisions of law. It is for the parties who will set their own time limit and it is not for the court to do so and this is the precise scheme and object of the 1996 Arbitration Act.
The appeal accordingly stands disposed of.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(KALYAN JYOTI SENGUPTA, J.) (KANCHAN CHAKRABORTY, J.) tk