NADEEM AZHAR SIDDIQI, J.---By this application the plaintiff has prayed for an order restraining defendant No,1 from snatching/forcibly taking away the buses plying on route UTS-12 till disposal of the suit. The learned counsel for the plaintiff submits that the plaintiff obtained certain buses on lease from the defendant No,1 under agreement dated 12-5-2004 and the defendant No,1, in spite of receiving an amount of Rs,24,166,611, is threatening to forcibly take away/snatch the said buses from the plaintiff. He submits that in case the defendant No,1 succeeds in taking away/snatching the buses from the plaintiff, the plaintiff will not be in a position to pay the lease rentals in respect thereof to the defendant No,
1. He states that the defendant No,2 under a separate agreement was liable to pay an amount equal to six per cent of the markup on the lease rentals to the plaintiff which it failed to pay and, therefore, the plaintiff was unable to pay the lease rentals regularly to the defendant No, 1.
2. On the other hand, learned counsel for defendant No,1 states that the contract under which the buses were obtained by the plaintiff from defendant No,1 stands expired on 14 September, 2008 and in terms of Clause 6.02 thereof, the plaintiff is liable to hand over the buses to the defendant No, 1.
He submits that the plaintiff was required to pay a sum of Rs,604,659 per month to the defendant No,1 on account of the lease rentals but it has failed to pay the same since September, 2006. He submits that the plaintiff has also not complied with the order dated 17-3-2008. As regards the concession at the rate of six per cent of the mark-up, the learned counsel states that the defendant No,1 has nothing to do with any arrangement arrived at between the plaintiff and the defendant No,2 and that since the lease agreement was executed between the plaintiff and the defendant No,1, therefore, the plaintiff is required to discharge his contractual obligations thereunder and the defendants Nos.1 and 2 have no privity of contract inter se.
The agreement and the charges are not disputed. The dispute appears to be due to non-payment of 6% mark-up by defendant No,2. The contention of the learned counsel for defendant No,1 that the said defendant has no concern with any contract executed between the plaintiff and the defendant No,2 appears to be correct. However, the controversy cannot be decided at this stage.
The plaintiff is plying the buses and if at this stage the protection provided to the plaintiff by way of interim order is recalled, the plaintiff shall be seriously prejudiced and shall suffer irreparable loss and injury as the defendant No,1 will take over the buses and will auction the same which will not only cause financial losses to the plaintiff but at the same the Bank/defendant No,1 may also not be in a position to recover its dues. Therefore, I consider it in the interest of both the parties that the plaintiff shall continue to ply the buses on the said route. 'Furthermore, in case leave is granted to the defendants without protecting the plaintiff their cause will be frustrated which will not be in the interest of any one. Accordingly, I confirm the ad interim order passed on 17-3-2008 subject to deposit of monthly instalments minus the mark-up 6% to be paid by the defendant No,2 to the plaintiff as follows:--
(1) The instalment (=Monthly lease rental-6% of the markup only) for the month of October, 2008 is to be deposited with the Nazir of this Court on or before 15th of this month positively. Thereafter, the monthly instalments, as calculated above, are to be deposited with .The Nazir on or before 10th of every calendar month.
(2) The arrears from the month of September, 2006 to September, 2008 (=monthly lease rentals for all the months @6% of the mark-up only for every month)will be deposited with the Nazir of this Court within three months from today. The plaintiff may adjust the amount already deposited with the Nazir.
In case the plaintiff fails to deposit any of the above amounts within the stipulated time, the stay order shall stand vacated without any further notice/order and the defendant No,1 would be at liberty to take over possession of the buses and to deal with the same in accordance with law and contract executed between the parties.
' Both the parties were given time to file their respective statements showing the rate of monthly instalments payable by the plaintiff minus the 6% mark-up to be paid by CDGK, the period for which the instalments were not paid and total amount of arrears for such period.
' Mr. Bahzad Haider, learned counsel for the defendant No,1, filed the required statement as under:-- Monthly Rental 604,459 6% Mark-up to be paid by CDGK 4,1666 Installment for October/08: (to be paid for October and future Months.)600,293 For default period: From September, 2006 to September, 20081,666,249 Less 6% mark: 99,975 Total arrears payable for default period: 14,407,041 ' In the statement filed by learned counsel for the plaintiff the total mark-up component to be paid by the CDGK is shown to be Rs,4,402,232, calculated from inception of the lease. Since the learned counsel were directed to file statement only for the default period, therefore, this figure is not taken into consideration.
The plaintiff is required to deposit the above instalment for the month of October, 2008 on or before 15 of this month and future lease rentals at the same rate on or before 10th of each calendar month. The plaintiff is also required to deposit the arrears for the default period within three months .
' The application stands disposed of in the above terms.
2-A. In view of the order passed at Sr. No,1, this application has served its purpose and is accordingly disposed of.
3. By this application the defendant No,1 has prayed for grant of unconditional leave to defend the suit. Learned counsel for the defendant No,1 submits that the plaintiff has failed to discharge its obligations under the contract and that has claimed damages which cannot be adjudicated without recording evidence by the parties. He submits that the defendant NO.1 has made out a good case for grant of unconditional leave to defend.
' Mr. Salim Salam Ansari, learned counsel for the plaintiff states that subject to all just exceptions and the rights of the plaintiff to repudiate the contentions of the defendant No,1, he has no objection to the grant of unconditional leave to defend to the defendant No, 1.
' In view of the above, this application is allowed and unconditional leave to defend is allowed to the defendant No, 1.
4. Since unconditional leave to defend has been granted to the defendant No,1, this application is also allowed and defendant No,2 is also allowed unconditional leave to defend the suit.