Interim Order 1

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: ARBTN No. 675/23
M/s Cholamandalam Investment & Finance Company Ltd.
Vs.
Sukh Ram
09.05.2023
Fresh arbitration petition received by way of
assignment. Same be checked and registered.
Present: Mr. Sachin Kumar, Ld. Counsel for the petitioner.
Ld. Counsel for the petitioner has submitted on the
maintainability of the present application before this Court. Ld.
Counsel for the petitioner has submitted that as far as the territorial
jurisdiction is concerned since the seat of the arbitrator is in North
Delhi, therefore, the present application is maintainable before this
Court. He has also argued that since the present application is for a
recovery of Rs. 2,36,332.61/- which is below the specified value limit
of Rs. 3 lacs and above, the matter cannot be entertained before the
Commercial Courts in view of Section 2, 6, 10 (2) and 12 (b) of the
Commercial Courts Act 2018. It is further stated that since the matter
has to be decided by the Ld. Principal Civil Court in view of Section 2
(e) (i) of the Arbitration and Conciliation Act 1996, the same is listed
before this Court for disposal in accordance with law.
On merits, Ld. Counsel for the petitioner has stated that
the present application under Section 9 of the Arbitration and
conciliation Act 1996 is filed for seeking interim relief of appointment
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of receiver with a direction to take possession of the vehicle make
SLE bearing Registration No. UP-24-AL-4086 Chassis no.
MA1XM2WJXK5F45065 Engine no. WJK6E44964 (herein after
referred as 'subject vehicle'). Along therewith the petitioner has filed
an application for grant of ex-parte ad-interim orders for appointment
court receiver and direction to take possession of the subject vehicle.
It is the case of the petitioner that it is the non banking finance
company duly registered with the Reserve Bank of India and his inter
alia engaged in the business of providing finance for various
purposes. The petitioner and respondent executed a Loan Agreement
whereby the petitioner advanced a loan of Rs.6,55,248/- to the
respondent for purchase of subject vehicle which was hypothecated
under the agreement. In terms of agreement, the loan was to be repaid
by way of 79 monthly installments for Rs.15,248/- each starting from
28.08.2019 to 28.02.2026. It is the case of the petitioner that after
availing the loan facility and enjoying the possession of the vehicle,
the respondent failed to adhere to financial discipline and committed
willful defaults in payment of the monthly installments. It is stated
that there is an outstanding payment against 15 EMI amounting to
Rs.2,36,332.61/-. It is further stated that parties are bound by
the Arbitration Agreement in event any dispute arises between
the parties. It is stated that the matter has not been referred any
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arbitrator for the purpose of Arbitration proceedings by the
petitioner company and will be referred soon in the event of non
disposal of dispute after due process of law. It is stated that as of now
re-possesison of vehicle is the sole way before the petitioner to secure
his present default and the future pending amount. It is therefore,
humbly prayed that the executive of the petitioner company be
appointed as a receiver so as to secure the vehicle, repossessing the
same for the proper and just trial for the arbitrator.
Heard.
After considering the submissions of the petitioner, this
court is of the considered view that the present application is
maintainable before this Court.
Having perused the petition, the application and the
documents filed therewith as well as having heard Ld. Counsel for the
petitioner, this court is of the opinion that in the present case,the
petitioner has made out a prima faice case for appointment of receiver,
since the respondent has failed to fulfill his financial obligation under
the Loan cum Hypothecation Agreement to pay the monthly
installment in terms of the agreement. There is a bonafide
apprehension that the respondent may sell or dispose the subject
vehicle. The balance of convenience also appears to be in favour of
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the petitioner in as much as there is Loan cum Hypothecation
agreement between the parties whereby the subject vehicle has been
hypothecated as security for the loan. Further, the petitioner may
suffer irreparable damage as there is every possibility of harm be
caused to the interest of the petitioner in case in the interregnum, the
respondent sells or disposes of the above said vehicle.
Accordingly, Sh. Manoj Kumar is appointed as receiver
in this case to take custody of the vehicle make SLE bearing
Registration No. UP-24-AL-4086 Chassis no.
MA1XM2WJXK5F45065 Engine no. WJK6E44964 from the
respondent or his agent. The following direction are accordingly
issued to the receiver:-
1. That Receiver shall first try to take over the possession of the
aforesaid vehicle from the house of the Respondent or the
address(es) mentioned by him in his application seeking loan,
but if vehicle is not found at the aforesaid places, the Receiver
may recover it from any place wherever it is found or stationed
with or without the assistance of police but without breach of
peace.
2. That Receiver shall not stop the aforesaid vehicle if it is plying
or running on road, to forcibly take out the driver, to take the
possession of the aforesaid vehicle and the Receiver shall not
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attempt to block the passage of the aforesaid vehicle too, to
bring it to halt to take its possession.
3. That the Receiver shall not take the possession of the aforesaid
vehicle, if the vehicle is on road and is occupied by any
physically or mentally challenged person, ill or infirm person,
senior citizen or a woman unaccompanied by any man. In such
cases, the Receiver shall repossess the aforesaid vehicle from
the house of the Respondent or house of such occupier or any
such other place wherever vehicle is found to be stationed.
4. That Receiver shall immediately show some proof of his
identity and attested copy of this order to the Respondent, his
agent or any other person found to be in possession of the
aforesaid vehicle and handover to him a photocopy of this
order against due acknowledgement.
5. The respondent, after receiving copy of this order may raise
objections against the Receiver for non-compliance of any of
the terms stated in this order by moving appropriate
application fore the Arbitrator who shall decide the same as
per law.
6. The Receiver shall permit the Respondent, his agent or person
found to be in possession of the aforesaid vehicle to take the
photographs of the aforesaid vehicle, if he so desires.
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7. That Receiver shall immediately record the condition of the
recovered vehicle separately and supply the copy of that
record to Petitioner and Respondent on the spot against due
acknowledgement.
8. That after repossession of the vehicle, Receiver or Petitioner
shall not dismantle or damage the vehicle and keep the same in
safe custody and in case of any damage to the vehicle, the
Petitioner shall be responsible and it will duly compensate the
Respondent.
9. An inventory in respect of the attachments in the vehicle in
question shall be made by the Receiver and copy of the same
be given to the person from whose possession the vehicle is
possessed and the petitioner shall file the same in Court
alongwith the report of the Receiver.
10. The condition of vehicle shall be noted and the Receiver shall
take photograph of the repossessed vehicle from all sides and
shall ensure that vehicle is kept in the same condition in which
it was repossessed.
11. An appropriate receipt shall be given to the person from whose
custody the vehicle is taken. The vehicle in question shall not
be sold or dispossessed of or parted without the permission of
the court.
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12. That if the Respondent, his agent or any person found to be in
possession of the aforesaid vehicle pays the pending EMIs up
to the date of repossession, on the date of repossession itself
by any mode of payment, the Receiver shall accept the same
and issue proper receipt to respondent and will not repossess
the aforesaid vehicle and release the same on execution of
proper Superdarinama by the respondent in the name of
receiver to the effect that respondent will pay all the future
installments regularly within time as per aforesaid agreement
and will not dispose of the aforesaid vehicle without prior
permission of the Arbitrator.
13. Petitioner shall file the affidavit indicating repossession of
vehicle within three days of its repossession alongwith its
photograph and inventory.
14. That if the Respondent does not make the payment of the
outstanding amount to the Petitioner on the date of
repossession, but makes the payment of outstanding dues
within thirty days from the date of repossession, the Receiver
shall release the aforesaid vehicle on furnishing of
Superdarinama on the aforesaid terms and conditions.
15. The Receiver will not seize the aforesaid vehicle, if an
independent third party interest is involved into it, without
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seeking prior permission of the Court.
16. The Receiver shall take the police aid, if required. The
concerned SHO of the area where the vehicle is found shall
render all possible assistance to the Receiver for taking
possession of the vehicle.
17. In case the vehicle is not repossessed within a period of two
months from the date of this order, the present order shall
cease to be in operation, since the present proceedings are only
interim measures with the dispute being required to be
resolved by the arbitrator.
18. Arbitral proceedings shall commence within 90 days of this
order in terms of amended Section 9 (2) of Arbitration and
Conciliation Act, 1996. For all further reliefs petitioner would
be at liberty to approach Ld. Arbitrator u/s 17 of the Act.
Issue notice of the present petition to respondent on filing of
PF/RC and Speed Post, returnable for 14.08.2023.
Copy of the order be given dasti.
Shivali Bansal
ADJ-03, Rohini Courts
North District, Delhi
09.05.2023
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