1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUMMARY SUIT NO.2951 OF 1997 Indbank Merchant Banking Services Ltd. ...Plaintiff. Vs. Atash Industries (India) Ltd. (In Liqn.) & Anr. ...Defendants. .... Mr. K.H. Mody i/b. JMB Partners for the Plaintiff. None for the Defendants. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 9, 2009. P.C. The suit has been instituted for recovery of moneys due under a hire purchase agreement dated 27th December 1993, executed between the Plaintiff and the First Defendant. The First Defendant is in liquidation and the Official Liquidator has been brought on record. 2. In pursuance of the request made by the First Defendant, the Plaintiff by its letter dated 27th December 1993 sanctioned a hire purchase facility in the amount of Rs.125 lakhs. A hire purchase agreement was entered into between the Plaintiff and the First 2 Defendant on 27th December 1993 in respect of certain machineries described in Schedule-I to the agreement. Under the agreement, the First Defendant agreed to pay monthly hire charges in thirty six monthly instalments between 6th June 1994 and 6th May 1997 and to pay in default, additional finance charges at the rate of 2% per month. The First Defendant executed a Demand Promissory Note and issued thirty six post dated cheques. The Second Defendant executed a Personal Guarantee on 23rd December 1993. The instalments were paid regularly until September 1995. The instalments for the months of October, November and December 1995 were paid though not on the due date. The post dated cheques issued by the First Defendant were dishonoured. The Plaintiff has instituted proceedings under Section 138 of the Negotiable Instruments Act, 1881. A letter of demand was addressed by the Plaintiff's Advocate to the Defendants on 15th May 1997. The First Defendant's Advocate by a reply dated 26th May 1997 denied the liability of the First Defendant to pay any amount. 3 3. The suit has been instituted for recovery of the amounts due and payable. 4. No Written Statement has been filed by the First Defendant. Since the First Defendant has since gone into liquidation, the Official Liquidator has been brought on record, after obtaining leave of the Company Court. The Plaintiff has relied upon an affidavit of evidence of its Vice President and on a compilation of the original documents. In the absence of any contest, the claim has been duly proved. 5. By an ad-interim order dated 8th October 1997, this Court has directed the Defendants to pay an amount of Rs.75,000/- every month for six months and after the expiry of a period of six months, an amount of Rs. 1.25 lakhs every month. In the event of any two defaults, the Court Receiver was to stand appointed as Receiver. The Plaintiff has stated in the affidavit of evidence that the amount of Rs. 75,000/- was paid between November 1997 and February 1998 after 4 which no further payment has been made. An aggregate payment of Rs. 3 lakhs had been received by the Plaintiff. The Court Receiver was appointed as Receiver of the equipments which form the subject matter of the hire purchase agreement. The Official Liquidator handed over possession of the equipments to the Plaintiff. The suit shall stand decreed in terms of prayer clauses (a) and (f) with the modification that the Plaintiff will be entitled to interest at the rate of 9% p.a. from the date of the institution of the suit, until payment or realization and with a further direction that the Plaintiff shall give due credit to the First Defendant of the amount of Rs.3 lakhs which has been realized after the institution of the suit in computing the decretal amount. ......