Order 1

Order Details: COPY OF JUDICIAL PROCEEDINGS
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OMP (I) (COMM.) 2080/23
Kotak Mahindra Bank Ltd. V. Nanhe Lal Saroj
Fresh petition u/S 9 of the Arbitration and Conciliation Act, 1996 has
been received. It be checked and registered.
21.09.2023
Present Sh. Purv Mahajan, Ld. Counsel for petitioner.
Heard.
1. This is a petition filed U/s 9 of the Arbitration and Conciliation Act,
1996 along with an application for grant of ad-interim exparte order for
appointment of receiver to take possession of the subject vehicle having
registration No. DL1MA9957 from the respondent, his agents or any person
found to be in possession of the same.
2. The case of the petitioner is that the respondent after availing the
loan/finance amount of Rs.1890518/- had purchased the subject vehicle out of
the aforesaid amount so disbursed under the loan-cum-Hypothecation agreement
dt. 29.04.2022. The respondent has agreed to pay the entire loan amount along
with the interest in 54 EMI's. He has, however, defaulted in payment of the
EMI's. The petitioner has recalled the loan vide notice dt. 31.07.2023 and has
requested the respondent to handover the possession of the said vehicle and an
amount of Rs. 1541686/- is due from respondent as on date i.e. 31.07.2023.
3. The petitioner has the strong apprehension that the respondent may
dispose of the said vehicle which is the only security with the petitioner. It is
prayed that receiver may be appointed to repossess the said vehicle.
4. Considering the facts and circumstances of the case and the fact
that the respondent is defaulter to the tune of Rs. 1541686/- the apprehension of
the petitioner that the subject vehicle may be disposed of by the respondent
during pendency of dispute is not totally mis-conceived.
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5. Ld. Counsel for petitioner has prayed that delay in grant of interim
relief may defeat the very object of filing the instant petition and the application
under disposal. Accordingly, I am satisfied that the petitioner has made out a
prima-facie case for grant of ad-interim exparte relief. Accordingly, the following
directions are being passed:-
(1) Sh. Dhirender Singh Rawat, Authorized Representative
of the applicant company is appointed as a receiver in this case to
take into his custody the vehicle having DL1MA9957 from the
respondent, his agents or any other person found possessing the
vehicle.
(2) 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 a car.
(3) 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/mentallychallenged person. In such cases, the receiver
shall take the possession of the vehicle from the borrower's
residence.
(4) 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.
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(5) 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 is taken.
(6) At the time of taking the custody of the vehicle, the receiver
shall take the photographs of the vehicle from different angles and
prepare the inventory of the articles lying in the vehicle.
(7) After taking the vehicle in possession, the receiver shall keep
the vehicle in safe custody and shall not dispose of/sell the vehicle
without the permission of the arbitrator. Needless to say that if,
respondent makes payment, the vehicle shall be released to the
respondent.
(8) The receiver shall submit his report before this court within 10
days of taking the custody of the vehicle along with the
photographs and inventory mentioned above.
(9) In case the respondent clears all the pending installments upto
date then the vehicle shall not be repossessed.
(10) The petitioner shall refer the dispute to arbitration in terms of
loan agreement if not already referred for appointment an
arbitrator within four weeks from today and inform the court in
writing about the same on the next day.
(11) This order shall remain valid for three months from today.
(12) The receiver shall handover a copy of this order to the
respondent or to the person in whose possession the vehicle is
found, before repossessing the vehicle.
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(13) Petitioner is directed to initiate arbitration proceedings
against respondent within 15 days from today in term of Section
9(2) of the Arbitration & Conciliation (Amendment) Ordinance
2015. In case of failure, the aforesaid order shall be deemed to be
vacated.
(14) The application for ex parte Interim Relief filed on
behalf of the petitioner is accordingly disposed off, as
elaborated above.
(15) It is made clear that in the event of steps not being taken
for service of the respondent or the arbitration not being initiated
within 15 days of the order, the petition shall be dismissed for non
prosecution.
6. Notice of the petition be served upon the respondent on filing of PF
and RC, within a week’s time.
7. Petitioner is also directed to get the respondent served by taking the
Dasti notice of the petition and of the application through his E-mail and
RC/Speed Post/approved courier at its own on 08.11.2023. The petitioner is also
directed to file the affidavit of service on the respondent.
8. Copy of this order be given Dasti.
Put up on 08.11.2023.
(Sandeep Yadav)
District Judge (Commercial Court)-03
South/21.09.2023
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