Final Order 1

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. SANATAN PRASAD,
ADDITIONAL DISTRICT JUDGE02, (EAST),
KARKARDOOMA COURTS, DELHI.
Arbtn no. 4124/2023
In the matter of :
HDFC Bank Ltd.
Having Its Registered Office At:
HDFC Bank House
Senapati Bapat Marg,
Lower Parel (West), Mumbai
Branch Office AT
G83, 92 Vikash Marg, Preet Vihar,
New Delhi, Delhi 110092
Acting Through and By the hands of
Sh. Tusharr Mawkin. .................Petitioner
Versus,
Pawan Kumar
R/o. House No. 2800 Housing Board,
Sector 55 Faridabad, Faridabad, 121005,
Haryana. ..............Respondent
ORDER
Fresh application U/s. 9 of A & C Act, 1996 received.
Be checked and registered.
1. Sh. 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 Hyundai I 20 Elite Magna 1.4 CRDI, Registration No. HR51BQ3175,
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Chasis No.MALBM51RLHM404484, Engine No. D4FCHM360815 which
stood hypothecated with the petitioner.
3. Case of the petitioner is that the petitioner is a company, carrying on
business of hirepurchase of Vehicle Hyundai I 20 Elite Magna 1.4 CRDI,
Registration No. HR51BQ3175, Chasis No.MALBM51RLHM404484, Engine
No. D4FCHM360815 and Sh. Tusharr Mawkin is duly authorized to sign,
verify and institute the petition on behalf of the petitioner company. The
respondent approached the petitioner for purchase of Vehicle Hyundai I 20
Elite Magna 1.4 CRDI, Registration No. HR51BQ3175, Chasis
No.MALBM51RLHM404484, Engine No. D4FCHM360815 and the petitioner
financed the same to respondent. An agreement of loancumhypothecation,
dated 30.07.2017 bearing no.49702455 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 Rs.6,96,761/ (Rupees Six Lakhs Ninety Six Thousand Seven
Hundred Sixty One Only) to the respondent, which was to be repaid by the
respondent in 60 equal monthly installments of Rs.14,295/ commencing
from 05.09.2017. It is claimed that the respondent failed/avoided to make the
payment, as per schedule and after lapse of months, respondent has paid
only 01 installment/(s). It is also claimed that the legal notice dated
05.01.2023 has also been issued to the borrower/respondent. It is stated that
as on date, respondent is liable to repay a sum of Rs.8,91,739.42/ . 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. Bhushan Manchanda
AR/Manager/Officer of the petitioner as 'RECEIVER' to take possession of
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Vehicle Hyundai I 20 Elite Magna 1.4 CRDI, Registration No. HR51BQ3175,
Chasis No.MALBM51RLHM404484, Engine No. D4FCHM360815.
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
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 exparte 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
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judgment Sundaram Finance, (supra), and Citicorp Finance (India) Ltd.,
(supra), there is no requirement of issuance of notice to the respondent
before passing an exparte order. An exparte order for appointment of
'RECEIVER' can be passed without issuance of such notice to the
respondent.
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. Bhushan Manchanda,
AR/Manager/Officer of the petitioner as 'RECEIVER' with directions to take
possession of Vehicle Hyundai I 20 Elite Magna 1.4 CRDI, Registration No.
HR51BQ3175, Chasis No.MALBM51RLHM404484, Engine No.
D4FCHM360815 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.
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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. 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
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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.
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.4,00,000/ (Rs. Four Lakhs 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 28.04.2023 (Sanatan Prasad)
Addl. District Judge02 (East),
Karkardooma Courts/ Delhi/28.04.2023.
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