IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.04.2011 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE V.PERIYA KARUPPIAH O.S.A.NOS.111 to 114 of 2011 and M.P.Nos.1 of 2011 (2Nos.) Sundaram Finance Limited 21,Patullos Road Chennai – 600 002 represented by its Manager Mr.J.Thilak ... Appellant in all O.S.As Vs. Mr.K.Sivakumar .... Respondent in all O.S.As Prayer: Original Side Appeal in O.S.A.No.111 of 2011 is filed against the order dated 7.4.2011 made in Application Nos.1131, 1132, 628 and 629 of 2011 respectively on the file of this Court. For Appellant in : Mr.T.Srinivasa Raghavan, in all O.S.As and Mr.S.Suresh For Respondent : Mr.M.Selvaraju in all O.S.As COMMON JUDGMENT R.BANUMATHI,J Being aggrieved by the Order passed by the learned single Judge dated 7.4.2011 setting aside the orders appointing the Commissioner and also seizure of vehicles and directing the Appellant to return the two seized vehicles to the Respondent, the Appellant – Sundaram Finance Limited has preferred these appeals. 2. The Appellant is a non-banking finance Company carrying on business of extending hire purchase/loan facility on automobiles and machinery and leasing of vehicles/ equipment/machinery. On three loan agreements, the Respondent availed financial assistance from the Appellant Company for purchase of heavy commercial vehicles, the details of which are as under: https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Agreement No. & date Loan amount in Rs. No.of Instls. & amount in Rs. Amount repayable in Rs. Reg.No. 1. BD7531 05.03.2007 12,00,000/- 55x29,160 16,03,800/- TN-30T 9590 2. DJ6509 05.04.2008 12,50,000/- 1x30,540 53x30,320 30,540/- 16,06,960/- TN-54Z 3083 3. DJ6848 13.02.2009 7,00,000 35x25,700 8,99,500/- TN-30T 0152 Total 41,40,800/- The first two loan agreements viz., BD7531 dated 5.3.2007 and DJ6509 dated 5.4.2008 are the subject matter of the applications. Appellant averred that apart from the above three loan agreements, the Respondent had also entered into other loan agreements as guarantor. 3. Case of Appellant is that the Respondent having entered into loan agreements with the Appellant Company was not able to repay the amount as scheduled under the loan contracts and requested the Appellant to re-structure the loan contracts to enable him to pay lesser and reduced E.M.I. spread over longer tenure. Appellant Company sympathetically considered the request and re-scheduled the contracts. Even after re-schedulement, the Respondent was not regular in payment of the instalments and committed default in respect of the contracts. Alleging that the Respondent continued default and that the arrears were mounting the Appellant filed two applications under Section 9 of the Arbitration and Conciliation Act, 1996 read with Order XIV Rule 8 of Original Side Rules in Application Nos.628 and 629 of 2011. 4. By the Order dated 2.2.2011, the Court appointed Advocate Commissioner to seize the vehicles. The Advocate Commissioner went to Attur and secured police protection and seized the vehicles from the Brick Chambers belonging to one Balasubramanian, a close relative of the Appellant and also stated to be an influential person in the locality. According to the Appellant, the vehicles could not be driven immediately because some wires connected to the Engine were disconnected by the Respondent before leaving the vehicles in the Brick Chambers. The batteries for the vehicles were down and there was no diesel in the fuel tank. Material documents were also not available in the vehicles and the vehicles were not in a condition of moving. The Appellant has further alleged that the Respondent had not paid road tax to the vehicles and also the insurance premium for considerable time and as such the two vehicles in question are not road worthy, in the sense, that they cannot be put on the road. https://hcservices.ecourts.gov.in/hcservices/ 5. The Respondent filed two applications – A.Nos.1131 and 1132 of 2011 to set aside the order dated 2.2.2011 for seizure of the two vehicles. The Respondent averred that he has availed financial assistance from the Appellant only for three heavy commercial vehicles and that he had been making payments through cheques to the Appellant company and he made payment of Rs.63,72,246/- (including Rs.7,62,432/- paid for foreclosure of four loan accounts and that there was an excess payment of Rs.14,69,014/-. Stating that he has made excess payment and that the officials of the Appellant were misusing the cheques entrusted to them for payment of instalments, and alleging that the amounts paid by him were not given to proper credit, the Respondent prayed for setting aside the order dated 2.2.2011 and for return of seized vehicles. 6. Refuting the averments in the counter affidavit, the Appellant filed reply affidavit denying any excess payment. The Appellant averred that the Respondent availed financial facilities from the Appellant Company in plurality of contracts in different names even though the Respondent was operating the vehicles and the accounts. According to the Appellant , the Respondent had been making payment to the Appellant Company for all the loan accounts of plurality of contracts and that the payment made by the Respondent was appropriated and adjusted towards the dues under the accounts as instructed by the Respondent. The Appellant further averred that Respondent had not objected to the appropriation of the payment and therefore estopped from questioning the same by his silence and inaction. 7. The learned single Judge in extenso referred to the various payments made by the Respondent through Cheques. The learned single Judge held that there being a serious dispute regarding the payment and the calculation, it cannot be said that the Appellant Company has established primafacie case. The learned single Judge further held that while considering the application under Section 9 of the Arbitration Act, the Court is mainly concerned with the prima facie case. The learned single Judge observed that it cannot be said that Appellant would be having difficulty in recovery of the amount and on those findings set aside the order dated 2.2.2011 ordering seizure of the vehicles by appointing advocate Commissioner. Being aggrieved with the common order, the Appellant has preferred these appeals. 8. In his counter affidavit, the Respondent has referred to various payments made by him by Cheques. As per averments in the counter, the Respondent made payment to the Appellant Company under (a) 59 cheques drawn on ICICI Bank Account No.604901500318 of Attur Branch from 4.4.2007 to 1.7.2009; (b) 19 Cheques drawn on Syndicate Bank Account No.62982200046972 of Attur Branch for the period from 21.1.2009 to 25.8.2009; (c) 2 Cheques drawn from ICICI https://hcservices.ecourts.gov.in/hcservices/ Bank Account NO.604901506928, Attur Branch of his wife S.Sathiya; (d) cash payment of Rs.4,07,460/- and (e) a Demand Draft drawn on Karur Vysya Bank, Athur Branch for Rs.4,73,294/-, i.e., total of (a)+(b)+ (c)+ (d) + (e) is Rs.63,72,246/-. According to the Respondent, the said payment includes a sum of Rs.7,62,432/- towards foreclosure of the four loans from the Respondent for his tyre business and other loan accounts and that he paid a sum of Rs.14,69,014/- over and above the due amounts. The Respondent has taken a stand that the Appellant Company cannot contend that the Appellant Company can adjust and appropriate the amount against the 27 contracts. 9. Per contra, the Appellant Company claims that there was plurality of contracts and the Respondent had availed financial assistance in 27 contracts, out of which, in 12 contracts, the Respondent is the borrower; in 13th contract, Respondent was the borrower and the respondent assigned it to Mr.Alanganathan; in 3 contracts, the Respondent is the guarantor and in rest of the contracts, the Respondent is said to have availed the loan in the name of his associates and the Respondent is stated to be making the repayment and he is also stated to be operating the vehicles. The Appellant claims that in respect of 13 contracts, the Appellant has given credit of Rs.36,46,609 out of the payment. In respect of 3 contracts wherein the Respondent is the guarantor for a sum of Rs.1,40,620/- Thus a total of Rs.37,87,229/- has been given credit to. The stand of the Appellant is that the Respondent by his conduct and silence did not object to the appropriation of payment during 2007 - 2010. and now the Respondent is estopped from contending that he did not authorise appropriation. 10. Assailing the impugned order, learned counsel for the Appellant has contended that the question whether there was any excess payment at all is to be decided only on the basis of evidence and the same cannot be decided in an application under Section 9 of the Arbitration Act and proper forum would be the Arbitral Tribunal. It was further contended that even though 11 contracts are in the name of business associates, the Respondent is the guarantor. The Respondent was operating the vehicles in business in respect of the said 11 contracts and that the Respondent had been making payment for all the 27 contracts. Drawing our attention to the various accounts, the learned counsel for Appellants contended that as and when the payment was made by the Respondent, the amount could be appropriated to one or more accounts as suggested and consented by the Respondent and appropriation of payment in several loan accounts was made with the consent of the Respondent and as suggested by him only. In support of his contention, the learned counsel placed reliance on a decision of this Court in M.RAGHAVA REDDIAR VS. ODUR DEVARAJULU REDDIAR, (AIR (30) 1943 MADRAS 236). https://hcservices.ecourts.gov.in/hcservices/ 11. The learned counsel for the Respondent contended that the Respondent had entered into three loan contracts with the Appellant under Contract Nos.BD7531 dated 5.3.2007, DJ6509 dated 5.4.2008 and DJ6848 dated 13.2.2009 and in the application, the Appellant had not come out with the correct particulars as to how the payments were given credit to. The learned counsel would further submit that even when the Respondent has been regularly making payment, without any prior notice, the Appellant Company had filed the application under Section 9 of the Arbitration Act by abusing the process of Court, much to the disadvantage of the Respondent. 12. In so far as the loan transaction in question viz., BD7531 dated 5.3.2007, the amount is repayable in 55 instalments of EMI of Rs.29,160/-. In so far as DJ6509 dated 5.4.2008, the loan amount is repayable in 54 months, the 1st instalment is Rs.30,540/- and the remaining 53 instalments at Rs.30,320/- per month. By perusal of various Cheque payments, it is seen that some of the Cheque payments were for Rs.91,560/- (Cheque No.924789 dated 5.4.2007); Rs.92,160/- (Cheque No.924793 dated 3.5.2007); Rs.75,800/- (Cheque No.933124 dated 27.8.2007); Rs.77,100/- (Cheque No.949894 dated 9.10.2007); Rs.76,570/- (Cheque No.967606 dated 3.12.2007); Rs.76,905/- (Cheque No.967614 dated 26.12.2007); Rs.1,05,600/- (Cheque No.967619 dated 4.1.2008); Rs.1,73,000/- (Cheque No.513966 dated 3.7.2008) and so on. According to the Respondent, he has regularly paid the instalments in respect of the loan contracts in dispute. Per contra, the Appellant contended that the amounts were appropriated towards the loan accounts as per instruction. 13. Whether the Respondent had given such instruction to appropriate the payments made by him in respect of other loan contracts and whether such appropriation was duly informed to the Respondent are the questions of fact to be determined only during the arbitral Tribunal. At this stage, suffice it to note that the Respondent had raised substantial defence that he paid the amount in respect of loan contracts – BD7531 dated 5.3.2007 and DJ6509 dated 5.4.2008. 14. Learned counsel for the Appellant has drawn our attention to Article 4 of the loan agreement, which deals with appropriation of payments in respect of certain charges/interest/service charges. Case of Appellant is that as per Article 4 of the loan agreement, the Appellant Company has a right to appropriate the payments and the Respondent by his silence acquiesced in the same and by his inaction is estopped from contending that he did not authorise the Appellant to appropriate the payments to other account. This contention raised is a substantial question of fact and interpretation of the terms of loan agreement and the merits of the contention cannot be gone into in these appeals, where the scope is very limited. https://hcservices.ecourts.gov.in/hcservices/ 15. Drawing our attention to Article 2.10 of the loan agreement, learned counsel for Respondent has submitted that in case of default of payment of instalmetns, it is always open to the Appellant to foreclose the loan and no such notice of foreclosure was issued by the Appellant and the Appellant straight away taking steps for seizure of the vehicle would clearly show lack of bonafide on the part of the Appellant . The merits of this contention again involves the question of interpretation of the terms of loan agreement, which we do not propose to go into at this stage. 16. In his report, the Commissioner has pointed out that two vehicles were found abandoned in a Brick Chamber belonging to one Balsubramanian, close relative of the Respondent and is also stated to be an influential person of the locality. In his report, the Commissioner had further stated that the vehicles could not be driven immediately because some wires connected to the engine were disconnected and that there was no diesel in the fuel tank and the vehicle was not in a condition of moving. The Commissioner has further stated that no permit, No original R.C.Book No Insurance have been kept inside the seized vehicle. 17. Laying emphasis upon the report of the Advocate Commissioner, the learned counsel for the Appellant has submitted that as per the terms of the loan agreement, the Respondent is bound to keep the vehicle in a good condition and the report of the Advocate Commissioner would clearly show that the Respondent has not taken care of the vehicle, which the learned single Judge did not keep in view. The Respondent disputes the report of the Advocate Commissioner. The learned counsel for Respondent has submitted that the said Balasubramanian, owner of Brick Chamber, is a relative of the Respondent and merely because the vehicles were seized from the brick chambers nothing adverse could be attributed to the Respondent. It was submitted that the respondent, being a businessman, earning his livelihood by operating the vehicles, would not be unmindful to take care of the vehicles. 18. In an application under Section 9 of the Arbitration Act, we are mainly concerned with prima facie case. While considering the question of grant of interim relief, the underlying principles for grant of injunction in proceedings Under Order 39 Rule 1 and 2 C.P.C. would be applicable. The Court must be satisfied as to three conditions:- existence of prima facie case, balance of convenience and irreparable loss. Once a prima facie case is found, the Court is required to consider whether any irreparable injury would be caused to the Applicant. Irreparable injury would mean that there is no other remedy available to the applicant/Appellant except the interim measures. The Court is further required to see the balance of convenience and to find out comparative hardship. As we have discussed earlier, the Respondent https://hcservices.ecourts.gov.in/hcservices/ claims to have paid the instalments in respect of BD7531 dated 5.3.2007 and DJ6509 dated 5.4.2008. In the light of the contention put forth by the Respondent, the learned single Judge observed that "it cannot be said that the Company has a prima facie case.". 19. Grant of any interim relief is discretion of the trial Judge. On weighing comparative hardship, the trial Judge has chosen not to grant injunction. The Appellate Court will not interfere with the exercise of the discretion of the Court of first instance and substitute its own discretion except where it is shown that the Court of First Instance has exercised its discretion arbitrarily or where the Court has ignored the settled principles of law. No such substantial ground has been made out warranting interference with the impugned order of the learned single Judge and these appeals are liable to be dismissed. 20. In the result, all the O.S.As are dismissed. However, we make it clear that we have not expressed any opinion on the merits of the matter. Consequently, the connected miscellaneous petitions are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk To 1.The Sub-Asst.Registrar Original Side High Court, Madras. Bbr 1 cc To Mr.M.Selvaraju, Advocate, SR.29904. 4 cc To M/s.T.Srinivasa Raghavan, & N.Narayanan, Advocate, SR.29718 to 29721. O.S.A.Nos.111 to 114 of 2011 LA(CO) RVL 02.05.2011 https://hcservices.ecourts.gov.in/hcservices/