Final Order 1

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. KISHOR KUMAR: ADJ-04 :
KARKARDOOMA COURT, EAST, DELHI
Arb. No: 4595/23
HDFC BANK LTD
Registered Branch Office at “HDFC
Bank House” Senapati Bapat Marg,
Lower Parel (West), Mumbai and
Branch Office At G 83, 92, Vikash
Marg, Preet Vihar, New Delhi
Delhi-110092
......Petitioner
VERSUS
Akram Sardar Ahmad
R/o H.no. 94, A Yadav Park Extn,
Najafgarh Road, Nangloi
.....Respondent
10.05.2023
O R D E R
Fresh application U/s. 9 of A & C Act, 1996 received.
It be checked and registered.
1. Sh. Sumit Kumar, Ld. Counsel for petitioner.
Ld. Counsel wants to submit ‘Address Form’. Let the Address Form
be furnished.
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 possession of Vehicle make MARUTI BALENO DELTA PETROL,
bearing Registration No. DL4CAZ4749, Chassis No.
3EWB22SLA674515, Engine No. K12MN7543735 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 vehicle and Sh. Tusharr Mawkin, Constituted
Attorney 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 make MARUTI BALENO DELTA PETROL,
bearing Registration No. DL4CAZ4749, Chassis No.
3EWB22SLA674515, Engine No. K12MN7543735 and the petitioner
financed the same to respondent. An agreement of loan-cum-hypothecation
dated 16.09.2021 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.
317,496/- to the respondent, which was to be repaid by the respondent in 50
equal monthly installments of Rs. 8,361/- each. It is claimed that the
respondent failed/avoided to make the payment, as per schedule and after
lapse of months/years, respondent has paid only 19 installment/(s). It is also
claimed that the recall notice dated 28.01.2023 has also been issued to the
borrower/respondent. It is stated that as on date, respondent is liable to pay
a sum of Rs. 256,889.54/-. 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), which the
petitioner intends to invoke. The petitioner has prayed for appointment of
Ms. Seema Sharma as 'RECEIVER' to take possession of Vehicle make
MARUTI BALENO DELTA PETROL, bearing Registration No.
DL4CAZ4749, Chassis No. 3EWB22SLA674515, Engine No.
K12MN7543735.
4. It has been argued by the ld. counsel for the petitioner that the
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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 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
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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 ex-parte order. An ex-parte 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 Ms. Seema Sharma,
Employee of the petitioner, as 'RECEIVER' with directions to take
possession of Vehicle make MARUTI BALENO DELTA PETROL,
bearing Registration No. DL4CAZ4749, Chassis No.
3EWB22SLA674515, Engine No. K12MN7543735 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
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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. 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.
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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.
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. 25,688.954/- (Rupees Twenty Five Thousand Six Hundred Eighty Eight
Point Nine Hundred Fifty Four Only) out 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 apparent authority of the
petitioner being reflected on the receipt itself.
19. Compliance report be filed in due course.
20. File be consigned to Record room.
PRONOUNCED IN THE OPEN COURT ON THIS 10th DAY OF MAY
2023.
(KISHOR KUMAR)
ADJ-04/KKD/EAST/DELHI
10.05.2023
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