Final Order 1

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. SANATAN PRASAD,
ADDITIONAL DISTRICT JUDGE-02, (EAST),
KARKARDOOMA COURTS, DELHI.
Arbtn no. 3421/2023
In the matter of :-
HDFC Bank Ltd.
Having Its Registered Branch Office At:
“HDFC Bank House”
Senapati Bapat Marg,
Lower Parel (West), Mumbai
Branch Office At:
G 83,92, Vikas Marg, Preet Vihar,
New Delhi, Delhi 110092
Acting Tusharr Mawkin .................Applicant
Versus,
Netrapal Kaihari Singh,
R/o KHS 199, Devla Greater Noida,
Gautam Buddha Nagar, Noida 201306
UP ..............Respondent
ORDER
Fresh application U/s. 9 of A & C Act, 1996 received.
Be checked and registered.
1. Ms. Manisha Baruah, Ld. Counsel for petitioner. Ld. Counsel wishes to
furnish the ‘Address Form’.
2. The present petition has been filed by the petitioner under Section 9 of
the Arbitration and Conciliation Act seeking appointment of receiver to take
vehicle Xcent T Plus CNG, Registration No. UP14JT4097, Chasis No.
MALA741CLKM389891, Engine No. G4LAKM436113 which stood
hypothecated with the petitioner.
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3. Case of the petitioner is that the petitioner is a company, carrying on
business of hire-purchase of Xcent T Plus CNG, Registration No.
UP14JT4097, Chasis No. MALA741CLKM389891, Engine No.
G4LAKM436113 and Sh. Tusharr Mawkin, duly authorized to sign, verify
and institute the petition on behalf of the petitioner company. The respondent
approached the petitioner for purchase of Xcent T Plus CNG, Registration
No. UP14JT4097, Chasis No. MALA741CLKM389891, Engine No.
G4LAKM436113 and the petitioner financed the same to respondent. An
agreement of loan-cum-hypothecation, dated 30.12.2019 was executed
between the petitioner and the respondent. Under the agreement, it was agreed
that the respondent would hypothecate and create first charge over the said
vehicle in favour of the petitioner company, as such, the vehicle stood surety
for due performance of the agreement. Under the agreement, petitioner
disbursed a sum of 577,459.00/- (Rupees Five Lakh Seventy Seven
Thousand Four Hundred Fifty Nine Only) to the respondent, which was to
be repaid by the respondent in 79 equal monthly installments of Rs. 12673/-
commencing from 05.02.2020. It is claimed that the respondent failed/avoided
to make the payment, as per schedule and after lapse of months, respondent has
paid only 30 installment/(s). It is also claimed that the legal notice dated
15.12.2022 has also been issued to the borrower/respondent. It is stated that as
on date, respondent is liable to re-pay a sum of Rs. 46,606/-. The petitioner is
having apprehension that respondent is contemplating to shift the vehicle
elsewhere. The agreement entered into between the parties contains
arbitration clause/(s) No. 8, which the petitioner intends to invoke. The
petitioner has prayed for appointment of Sh. Kailash Arya,
AR/Manager/Officer of the petitioner as 'RECEIVER' to take possession of
vehicle Xcent T Plus CNG, Registration No. UP14JT4097, Chasis No.
MALA741CLKM389891, Engine No. G4LAKM436113.
4. It has been argued by the ld. counsel for the petitioner that the balance of
convenience lies in favour of the petitioner and if the 'RECEIVER' is not
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appointed, irreparable loss would be caused to it, as there is apprehension that
the respondent may disposed of the vehicle. It is further argued that there is no
necessity to issue notice to the respondent, as this stage, and ex-parte order,
regarding appointment of 'RECEIVER' can be straightway passed. In support
of arguments advanced, judgment in case of GE Capital Transportation
Financial Services Ltd. v. Raj Tours Private Ltd. Reported as 159(2009) DLT
440 has been relied, in which, the Hon'ble High Court had appointed the
'RECEIVER' to take the possession of the vehicle, as the respondent had failed
to make the payment of the installments. Another judgment relied is in the
case of Jai Singh v. IndusInd Bank Ltd., reported as MANU/DE/4655/2009, in
which the order of Ld. Trial Court for appointment of 'RECEIVER' was
upheld. Another judgment relied upon is in the case of Sundaram Finance Ltd.
v. NEPC India Ltd., reported as (1999) 2 SCC 479, wherein, it has been held
that interim order can be sought from the Court, even before commencement of
the proceedings. It was further held that Court is not debarred from dealing
with the application under Section 9 of the Arbitration & Conciliation Act,
merely, because, no notice has been issued. Next, judgment is in the case of
Citicorp Finance (India) Ltd. v. Neeraj Jain & Anr., (FAO 283/2005, DOD :
20.09.2005, by Hon'ble High Court of Delhi), in which, it was held that delay
occasioned due to issuance of notice, thereby, preponement of interim
protection, to which, the appellant appears entitled, is likely to defeat the object
of filing of the petition. It was held that the Ld. Trial Court ought to have
passed an ex-parte order, appointing a receiver to secure possession of the
vehicle.
5. Perusal of agreement shows that the vehicle in question can be
repossessed by the petitioner, in case of default by the respondent. As per
judgment Sundaram Finance, (supra), and Citicorp Finance (India) Ltd.,
(supra), there is no requirement of issuance of notice to the respondent before
passing an ex-parte order. An ex-parte order for appointment of 'RECEIVER'
can be passed without issuance of such notice to the respondent.
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6. Accordingly, in view of the aforesaid judgments and facts and
circumstances of the case, a balance of convenience lies in favour of the
petitioner and in case exparte order, regarding appointment of 'RECEIVER' is
not passed, it would cause irreparable loss to the petitioner. In case exparte
'RECEIVER' is not appointed, there is likelihood of disposal of hypothecated
vehicle by the respondent and that its value may depreciate day by day.
Consequently, I, hereby, appoint Sh. Kailash Arya, AR/Manager/Officer of the
petitioner as 'RECEIVER' with directions to take possession of vehicle Xcent
T Plus CNG, Registration No. UP14JT4097, Chasis No.
MALA741CLKM389891, Engine No. G4LAKM436113 from the respondent
or any other person found in possession thereof. 'RECEIVER' is authorized to
take appropriate police assistance, if required. However, the vehicle shall not
be sold till further order of the Court.
7. The petitioner is directed to refer the matter to the Arbitrator within three
weeks. The petitioner is further directed not to transfer the possession as well
as title of the vehicle in question. Compliance report regarding status of vehicle
and appointment of Arbitrator be filed in due course. In case, vehicle is
repossessed, compliance report be filed immediately after its repossession,
failing which, interim order shall stand vacated.
8. In case, vehicle is repossessed, 'RECEIVER' shall report to the local
police station and shall submit the compliance report before this Court within
three days of the repossession of the vehicle in question. The copy of the order
be given to the 'RECEIVER' on his furnishing complete details of his
residence, contact number etc. alongwith proof.
9. The receiver shall take over the possession of the vehicle from the
respondent at the address(es) given in the loan application. If the vehicle is not
available at the said address(es), the receiver shall be at liberty to recover the
vehicle wherever found. However, the receiver shall not stop a running vehicle
on the road to forcibly take out the driver to take the possession of the vehicle.
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The receiver shall also not make any attempt to block the passage of the
vehicle to bring it to a halt to take its possession.
10. The receiver shall avoid taking the possession of the vehicle, if the
vehicle is occupied by a woman who is not accompanied by a male member or
an elderly, infirm or physically/mentally challenged person. In such cases, the
receiver shall take the possession of the vehicle from the borrower's residence.
11. The receiver shall be at liberty to take the assistance of the local police,
if required, for taking over possession of the vehicle. The concerned SHO
shall provide assistance to the receiver as and when requested.
12. The receiver shall also ensure that the repossession of the vehicle does
not result in any breach of peace. In the event of any breach of peace, the
receiver shall not proceed without assistance of police.
13. At the time of taking the custody of the vehicle, the receiver shall deliver
a copy of this order to the person from whom the possession it is taken.
14. At the time of taking the custody of the vehicle, the receiver shall take
the photographs of the vehicle from different angles alongwith the person(s)
occupying the vehicle as well as the place of taking over the possession.
15. The receiver shall remain personally present at the time of seizure of the
vehicle and shall prepare an inventory of the articles/accessories found in the
vehicle and shall furnish the copy of the inventory to the person from whom
the possession is taken. The exact date and time of the seizure shall also be
noted down and copy of the seizure memo shall be supplied to the respondent
or his representatives at the spot itself. Before taking possession of the vehicle,
the respondent shall be permitted to remove his belongings, if any from the
vehicle.
16. After taking the vehicle in possession, the receiver shall keep the vehicle
in safe custody for which the petitioner shall make appropriate arrangements at
his own cost, risk & responsibility.
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17. The maximum period for which this order shall remain effective is 90
days, i.e., Maximum time granted by this Court to the applicant/petitioner
under Section 9(2) of the Arbitration & Conciliation (Amendment) Act, 2015.
18. The Receiver shall not repossess the vehicle if the respondent pays Rs.
30,000/- (Rs. Thirty Thousand Only) of the total outstanding dues as on the
date of the petition filed in the Court and shall also duly issue a proper receipt
for receiving the amount with the apperent authority of the petitioner being
reflected on the receipt itself.
19. Compliance report be filed in due course.
20. Be consigned to RR.
Pronounced in Open Court on 12.04.2023. (Sanatan Prasad)
Addl. District Judge-02 (East),
Karkardooma Courts/ Delhi/12.04.2023
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