1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1346 OF 2003 Fortis Financial Services Ltd. ...Plaintiffs vs. Shree Ganesh Forgings Ltd. ...Defendants Ms Sujata Patil i/b Dholakia Law Associates for the plaintiffs None for the defendants CORAM :A.S.OKA,J. DATE : NOVEMBER 24, 2009 JUDGEMENT: 1 The suit is shown under the caption undefended suits for exparte decree . 2 According to the case of the plaintiffs, a lease agreement dated 2nd April 1990 executed by the defendants as lessees and the Empire Finance Company Limited as the lessor. On the request of the defendants, the said company agreed to give to the defendants on lease a machinery more particularly described in the Schedule I annexed to the lease agreement for a period of 60 months on the terms and conditions recorded in the lease agreement. Reliance is also placed on the lease agreement dated 4th March 1991 executed by the said company as lessors in favour of the defendants described as lessees relating in respect of the lease of machinery 2 more particularly described in the schedule annexed to the agreement. There were three further agreements executed by M/s.Empire Finance Company Ltd. in favour of the defendant granting lease of the machinery more particularly described in the schedule to the said agreements. In March 1996, the said company amalgamated with the plaintiffs and all rights were transferred in favour of the plaintiffs. 3 On 31st August 1998, the plaintiffs called upon the defendants to pay arrears due and payable under the lease agreements. Notice was replied by the defendants by raising a contention that they have paid the entire amount due and payable under the first two Agreements. The defendants accepted that under the agreement dated 14th June 1993, they were liable to pay a sum of Rs. 8,26,000.20 and they agreed to pay the said amount by monthly instalments. By notice dated 4th August 2001, the Advocate for the plaintiffs called upon the defendants to pay arrears of lease rent and called upon the defendants to return the property which was the subject matter of the lease agreements. The defendants replied to the said notice raising various contentions which according to the plaintiffs were not tenable. Therefore, present suit has been filed for a declaration that the lease agreement dated 14th June 1993 stands terminated by efflux of time. There is a prayer for a 3 decree for returning the equipment described in schedule to the plaint. A prayer is also made for money decree for recovery of arrears of lease rentals and other overdue charges. There is also a prayer for directing the defendants to pay costs, charges and expenses incurred for repossessing the said equipment with interest thereon. 4 One Mr. Riyaz Lokhandwala, Assistant Manager of the plaintiffs has filed an affidavit in lieu of examination- in-chief for proving the claim. Compilation of 12 original documents is tendered on record. The original lease agreements have been produced along with the order of amalgamation. The office copy of the letters dated 4th August 2001 and 12th November 2001 sent by the Advocate for the plaintiffs have been produced. By the affidavit of Mr.Riyaz Lokhandwala, the documents placed on record have been duly proved. The plaintiffs have etablished that the lease agreement dated 14th June 1993 stands terminated by efflux of time on 13th June 1998. Therefore, the defendants are liable to return the equipment mentioned in the schedule annexed to the said agreement. As far as monetary relief is concerned, particulars thereof have been set out in Exhibit-D. The claim is for outstanding lease rentals payable under the lease agreement together with interest at the agreed rate of 24% per annum. The said claim has been 4 established by the plaintiffs. 5 As far as prayer (d) is concerned, the same does not specificy the exact amount. If the defendants fail to return the equipment, the plaintiffs can execute the decree passed in the suit and obtain possession and therefore, prayer clause (d) cannot be granted. However, a case is made out for passing a decree in terms of prayer clauses (a) to (c). As far as further interest is concerned, the same will have to be fixed at the rate of 12% per annum. 6 Hence, I pass the following order : i) The suit sands decreed in terms of prayer clauses (a) to (c) with modification that further interest on the sum of Rs.2,79,377.00 will be payable at the rate of 12% per annum from the date of filing of the suit till the payment or realisation. ii)Prayer clause (d) is rejected. iii)The plaintiffs are entitled to recover costs of the suit from the defendants. iv)The plaintiffs are entitled to refund of court fees as per the rules. JUDGE