Interim Order 1

Order Details: COPY OF ORDER
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ARBT 4807/23
HDFC BANK LTD. VS NAND KISHOR PATNI
19.05.2023
Fresh arbitration petition received by way of assignment. It be checked and
registered.
Pr: Mr. Sumit, counsel for petitioner.
The present petition under section 9 of the Arbitration and Conciliation
(Amendment)Act, 2015 is accompanied with the application under section
151 CPC for appointment of receiver to take possession of loaned vehicle.
Submissions heard. Record perused.
By way of present application, the petitioner has sought an interim
exparte relief of appointment of Receiver, under section 9 of the Arbitration &
Conciliation (Amendment) Act, 2015 till the arbitration proceedings are
concluded, to take possession of vehicle i.e. CIAZ AMT ALPHACIAZ
having registration No. DL4CAY4386 Engine No. 1021235 and Chasis No.
MA3EXGL1S00373790 which was financed by the petitioner to the
respondent vide loan agreement/Account No. 62375293 and regarding which
the respondent committed default in payment of the installments towards the
loan amount. The loan amount of Rs. 10,56,761/ was repayable in 63 EMI's of
Rs. 21,994/ each but respondent has paid 45 EMI and has failed to pay 08
EMIs out of 63 EMIs and therefore, as per statement of account maintained by
the petitioner, respondent is liable to pay a sum of Rs. 2,11,565.06/ to the
petitioner towards foreclosure amount till date. It has been submitted that if
the interim relief is not granted, the petitioner will suffer irreparable loss and
injury.
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The loan cum hypothecation agreement bearing no. “Agreement no'.
62375293 was executed between the parties. Petitioner, before filing this
petition, has sent a separate Loan Recall Notice dt. 20.04.2022 to respondent
through courier/registered Ad. The main dispute between the parties
regarding the amount due and the payment of installments is to be decided by
the Sole Arbitrator as per the agreement executed between the applicant and
the respondent. The respondent committed default in the payment of EMI's
whereupon vide the aforesaid notice, the petitioner recalled the loan and called
upon the respondents to pay the total outstanding amount of Rs. 2,11,565.06/
The respondents have not complied with the aforesaid notice. Petitioner
submits that it has not yet initiated arbitration proceedings against the
respondent by appointing the sole Arbitration in terms of Agreement but
apprehends that the respondent might dispose of the vehicle before conclusion
of the said proceedings, thereby causing irreparable loss and injury to
petitioner and the recovery of the amount due may become impossible.
This court is satisfied that the petitioner has made out a case for
appointment of receiver. So considering the aforesaid, Mr. Akhilesh Kumar
Pandey, Authrorized Representative of the petitioner company, subject to
filing the copy of his ID card, is appointed as Receiver to take possession of
the aforesaid vehicle on terms and conditions as laid down by Hon'ble High
Court vide its order passed in 'KOTAK MAHINDRA PRIME LTD. VS
KAMAL CHAUHAN & ANR, O.M.P (1) No. 540/2015 & I.A No.
25026/2015 ON 23.12.2015, which are as under:
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“6. 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 recovery 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 a
car to bring it to a halt to take its possession.
7. 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 resident.
8. 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 prove assistance
to the receiver as and when requested.
9. The receiver shall also ensure that the possession 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.
10. 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.
11. At t he 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.
12. The receiver shall prepare an inventory of the
articles/accessories found in the vehicle and shall furnish
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the copy of the inventory to the person from whom the
possession is taken.
13. After taking the vehicle in possession, the receiver
shall keep the vehicle in safe custody.
14. If the respondent makes payment of the outstanding
installments as on date of possession, the receiver shall
release the vehicle in question to the respondent on
superdari subject to an undertaking by the respondent to
the receiver for regular repayment of future monthly
installments till the expiry of the tenure and a declaration
not to part with the vehicle or create third party interest in
the vehicle until the entire amount is paid.
15. If the respondent is not in a position to clear the entire
outstanding installments, the receiver shall give him
another opportunity to pay the outstanding installments
within 30 days of taking over the possession of the vehicle
and in case the respondent makes the payment the
outstanding installments within the said period, the
receiver shall release the vehicle to the respondent subject
to an undertaking as aforementioned.
16. If the respondent does not make the payment of the
outstanding amount to the appellant bank within 60 days,
the receiver, with the prior permission of the arbitrator,
would be authorised to sell the vehicle in question in a
public auction with prior written notice (to be sent by
Speed Post AD) of the date of auction to the respondent at
the address(es) mentioned in the loan agreement or the
address from where the vehicle is taken into possession so
that the respondent may also be able to participate in the
auction to enable the appellant to fetch maximum amount
from the sale of the vehicle. The receiver shall carry out
video recording of the auction proceedings and shall
submit the same before the arbitrator along with his final
report. The receiver shall submit his report before this
court within 10 days of taking the custody of the vehicle
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along with the photographs and inventory mentioned
above.”
Petitioner is directed to initiate arbitration proceedings against the
respondent within 90 days from today, if not already initiated, in terms of
Section 9(2) of the Arbitration &Conciliation (Amendment) Act, 2015. In case
of failure, the aforesaid order is deemed to be vacated. Interim application
stands disposed of accordingly.
It is made clear that this order shall remain in force for a period of 90
days from the date of the order or the date when the Arbitration proceedings
commenced, whichever is earlier. It is further directed that the copy of this
order be served upon the respondent or upon the person from whom the
possession of vehicle is taken from, against receipt, failing which this order
shall cease to have any effect and is liable to be set aside with cost.
Issue notice of the petition to the respondent vide PF/RC/Speed Post for
03.10.2023. Copy of the order be given dasti for compliance.
(Rajesh Kumar)
Addl. Distt. Judge03(East)
Karkardooma Courts19.05.2023
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