(August 27, 2001) 2001 (TLS)125642

2001-AD (Del)-7-598 :: 2001-ILRDLH-7-26

TRANS ASIA AUTO AND GENERAL FINANCE LIMITED Vs. Dharmendar Kumar

V. S. AGGARWAL

( 1 ) M/s. Trans Asia Auto and General Finance Ltd. (herein after described as the petitioner ) has filed the present suit Invoking Section 20 of the arbitration Act, 1940 for filing of the arbitration agreement and for making ,a reference of the disputes to the named arbitrator.

( 2 ) THE relevant facts are that the petitioner In due course of Its business hired a motor vehicle bearing chassis No. 344. 073-771861, registered NO. HRW no. 4774 to respondent No. 1. A hire purchase agreement dated 7/10/1991 was executed. Respondents NO. 2 and 3 stood as guarantors. On basis of the terms and conditions mentioned in the agreement the hire purchase agreement was executed for a total sum of rs. 1,88,200/- payable in 36 instalments. One of the terms of the hire purchase agreement was that all disputes shall be referred to the sole arbitration of shri G. S. Sistani, Advocate and in the event his being not available or incapacitate to Shri Shashi vansh Bahadur, Advocate.

( 3 ) RESPONDENT No. 1 after taking the vehicle is alleged to have failed to pay the monthly instalments and had only paid Rs. 94,200. 00 leaving a balance of rs. 94,000/- besides that it is asserted that petitioner is entitled to recover a sum of Rs. 57,633. 00 towards the compensation charges for late payment. Respondent no. 1 failed to pay the balance amount. despite service of the notice. The terms and conditions of the hire purchase agreement provided that petitioner is the owner of the vehicle and respondent No. 1 is holding the said vehicle only as a hirer, trustee and bailee. He has no right, title or interest in the vehicle. The petitioner claims that it is entitled to the damages for wrongful withholding of the vehicle and additional amount of Rs. 72,800. 00 is claimed. In addition to that it is asserted that petitioner is entitled to the return of the vehicle in the same condition otherwise Rs. 1,50,000/~ is payable, damages of Rs. 1,00,000. 00 to the vehicle, damages for breach of the agreement i. e. Rs. 50,000. 00. On the basis of these broad facts the present petition has been filed.

( 4 ) IN the written statement filed respondents No. 1 and 2 have contested the same. It is alleged by way of preliminary objection that the petitioner has wrongly valued the suit only to invoke the jurisdiction of this Court by erroneously making the value of the present suit to be more than Rs. 5 lacs. It is alleged that the total value of the disputed amount does not exceed Rs. 94,000. 00 and, therefore, the suit should have been filed in the lost grade competent to try the same.

( 5 ) ON merits it has been asserted that the petitioner had formed a bogus company with oblique motive to defraud the public at large in the name of financing loans. In the course of their business they obtained the signatures of the borrower on blank papers and documents. The total cost of the vehicle has been shown out Rs. 1,88,200/~. It was payable in 36 instalments. It does not give absolute and arbitrary power to the petitioner to put the amount of late payment as he wishes. It is even denied that there was any such arbitration agreement between the parties.

( 6 ) FIRST question that comes up for consideration is as to whether the claim of the petitioner had been so exaggerated to bring the petitioner with in the peculiar Jurisdiction of this Court. It was urged that even as per the assertions of the petitioner on basis of the agreement purported to have been set up the petitioner is not entitled to amount of more than rs. 5 lacs, therefore, this Court should return the plaint. On the contrary learned counsel for the plaintiff vehemently urged that it is the plaint which determines the value for purposes of Jurisdiction.

( 7 ) UNDER Section 15 of the Code of Civil Procedure every suit has to be instituted in the Court of lowest