IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. SUIT NO.1327 OF 1995 The Natiional Small Industries Corporation Ltd. .. plaintiffs v/s. Film-O-Pack Industries and others .. Defendants Ms. Sonali Shinde i/by M/s. Consulta Juris for the plaintiffs. CORAM : A.M. KHANWILKAR, J. DATED : 18TH JULY, 2007 P.C. This suit is placed under caption “undefended suit” in terms of order dated 27th July, 2007 as against defendant Nos.1 and 2. The suit is already dismissed for non-prosecution as against defendant No.3 as per order dated 24th March, 2000. Defendant Nos.2 and 3 are stated to be the partners of defendant No.1. 2. None appears for the defendants. No written statement has been filed on behalf of the defendants inspite of the order dated 27th July, 2007. As a result, the suit will have to proceed as undefended suit against the defendants. 3. The plaintiffs' case is that two agreements of hire purchase dated 2nd June, 1986 and 6th August, 1986 were entered into between the plaintiffs and the defendants. The plaintiffs gave on hire purchase basis to the hirers machinery viz. one fluxomatic corona treatment unit. The hire purchase value whereof is stated to Rs.13,30,636/- with an option to purchase the same on the terms and conditions mentioned in the agreement. The defendants made initial payment of Rs.1,40,902/- towards the earnest money. The defendants, however, committed default for the installments, to be paid as specified under the agreement. It is in this background the plaintiffs terminated the hire purchase agreement. Inspite of that, the defendants remained in arrears for which reason, the present suit has been filed by the plaintiffs praying for the following reliefs:- a) That it be declared that the agreements at Ex. A1 & A2 thereto stand validly terminated. b) That the defendants be ordered and decreed to deliver to the plaintiffs the above referred hired machinery (more particularly described in Schedule I of the Agreements Ex.A1 & A2 hereto) or in the alternative the defendants be ordered and decreed to pay to the plaintiffs the value of the suit machinery amounting to Rs.1,99,595/- (Rupees one lakh ninety nine thousand five hundred ninety five only). c) That the defendants be ordered and decreed to pay to the plaintiffs a sum of Rs.16,12,167/- (Rupees sixteen lakhs twelve thousand one hundred sixty seven only) being the arrears of instalments together with further interest on the principal amount of Rs.9,97,833/- @ 16.1/2% p.a. From the date of the suit till payment and realisation. d) That the suit machinery be ordered to be sold by private treaty or public auction by the court Receiver, High Court, Bombay under order, decree and direction of this Hon'ble Court and the net sale proceeds thereof be ordered to be handed over to the plaintiffs towards satisfaction of their claim in suit. e) That in the event of the sale proceeds of the suit machinery being insufficient to satisfy the plaintiffs' claim in the suit, the defendants be ordered and decreed to pay to the plaintiffs the short-fall or deficiency. f) That pending the hearing and final disposal of the suit, the Court Receiver, high Court, Bombay or some other fit and proper person be appointed Receiver of the suit machinery (described in Schedule I of Ex.A1 & A2 hereto) with all powers under order XL rule 3 of the Code of Civil Procedure, 1908 including the power to sell the same by private treaty or public auction and to hand over to the plaintiffs net sale proceeds thereof. g) That pending the hearing and final disposal of the suit, the defendants by himself, his servants and agents be restrained by an order and injunction of this Hon'ble Court from in any manner dealing with, disposing off, encumbering or in any way alienating or transferring the suit machinery (described Schedule I of Ex.A1 & A2 hereto) or any part thereof. h) Ad-interim reliefs in terms of prayer (f) & (g) above. i) Cost of the suit. j) For such other and further reliefs as the nature and circumstances of case may require. 4. As mentioned earlier, this suit is proceeding as undefended suit against defendant Nos.1 and 2 only. The said defendants have not bothered to appear nor have filed written statement. On the other hand, the plaintiffs in support have placed on record affidavit of examination in chief sworn by Shri D.K. Singh, authorised officer of the plaintiffs dated 29th March, 2007. Besides, the plaintiffs have produced list of documents and the original documents. The case made out by the plaintiffs is supported by the affidavit of evidence as well as the original documents placed on record. Obviously, there is no plausible defence available to the defendant Nos.1 and 2 for which reason they have not bothered to contest the present proceedings inspite of service. In such a situation, I have no hesitation in decreeing the suit in favour of the plaintiffs in exercise of powers under Order 8 Rule 10 of the Civil Procedure Code in terms of prayer clause (a) to (e). 5. Accordingly, the suit is decreed in terms of prayer clause (a) to (e) with costs. Decree be drawn up accordingly. (A.M. KHANWILKAR, J.)