1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2539 OF 1998 Indseam Services Ltd. ..Plaintiffs Vs. Kedia Castle Dellon ..Defendants Mr. K.H.Mody i/b M/s. JMB Partners for Plaintiffs None for the Defendants Mr. Debdas Guin Officer of Plaintiffs present CORAM : DR. D. Y. CHANDRACHUD , J. DATED : 23rd JULY, 2009. P.C. : 1. The suit has been instituted for the recovery of monies due and payable under the four Agreements entered into between the Plaintiffs and the 1st Defendant. On 27.03.1993, the Plaintiffs sanctioned to the 1st Defendant a Lease Finance Facility to the extent of Rs.50,000/- on terms and conditions set out in the letter of sanction. Pursuant thereto two Lease Agreements were entered into on 27.03.1993. In the first Lease Agreement, the Plaintiffs agreed to give to the 1st Defendant certain machinery on lease for a term of three years. The 2nd 2 Defendant who was a Director of the 1st Defendant executed an Agreement of Guarantee on the same day. Under the second Lease Agreement, also dated 27.03.1993, certain machinery was leased out by the Plaintiffs to the 1st Defendant, for a period of three years. The 2nd Defendant executed an Agreement of Guarantee. On 14.02.1994, the Plaintiffs further sanctioned to the 1st Defendant a Lease Finance Facility to the extent of Rs.13.50 lacs and Rs.7.75 lacs. A third Agreement was entered into on 28.02.1994, under which certain machinery came to be leased by the Plaintiffs for a term of three years. The 2nd Defendant executed an Agreement of Guarantee on 28.02.1994. On 28.06.1994, the Plaintiffs further sanctioned a Lease Finance Facility to the extent of Rs.32,00,000/-. A Lease Agreement dated 28.09.1994, was executed. The 2nd Defendant executed an Agreement of Guarantee. Under the first Lease Agreement, the 1st Defendant failed to pay 7 over due monthly installments aggregating to Rs.9,61,632/-. Under the second, third and fourth Lease Agreements, the over due installments aggregated to Rs.4,13,203/- , Rs.13,33,980/- and Rs.37,63,998/-. The four Lease Agreements, which were for 36 months, expired respectively on 26.03.1997, 26.03.1997, 27.02.1997 and 27.09.1997. Upon default by the Defendants, the Plaintiffs have claimed over due service charges and liquidated damages at 3% per month. An Advocates’ notice was 3 addressed on 29.09.1997, claiming the amounts due under the Agreements. The 2nd Defendant by a reply dated 06.10.1997, alleged that he had resigned as a Director of the 1st Defendant. In reply thereto, the Plaintiffs by an Advocates’ letter dated 08.10.1997, stated that the 2nd Defendant had furnished a personal guarantee under which he was liable. 2. At the interlocutory stage, the Court Receiver, was appointed as receiver of the equipment covered by the four Agreements of Lease. When the Receiver went to take possession, the equipment was not found at the premises of the 1st Defendant. The Plaintiffs could not take possession, as a result. 3. The Defendants have been served with a Writ of Summons, but have failed to entered appearance. The Plaintiffs have relied upon an Affidavit of evidence of a Competent Officer, who is present in the court and verifies the correctness of what is stated in the Affidavit. Three of the Agreements have been signed by the witness. In paragraphs 7 and 8 of the Affidavit, it has been stated that all the original documents, except the Lease Agreement dated 28.02.1994, have been misplaced. However, at the time of the filing of the suit, photocopies of the originals were taken. Besides typed copies also 4 have been made. The witness stated that the originals were compared with the photocopies and with the typed copies. In these circumstances, the request that has been made for leading secondary evidence, is allowed. From the compilation of the documents tendered in evidence and on the basis of the Affidavit of evidence, the claim of the Plaintiffs has been duly proved. The Plaintiffs have duly proved the Lease Agreements, the terms and conditions there of and the factum of default on the part of the Defendants. The 2nd Defendant is bound as Guarantor. In the circumstances, the suit shall stand decreed, in terms of prayer Clause (a) to (d) with the modifications that the Plaintiffs are entitled to the interest @ 9% p.a. on the amount mentioned from the date of the suit, until payment or realisation. (DR. D. Y. CHANDRACHUD, J.)