IN THE COURT OF SHRI [ENTITY] : DISTRICT JUDGE & ADDL. SESSIONS JUDGE, I/C (EAST) : KARKARDOOMA COURTS, DELHI Suit No.01/2013 Unique Case ID No.02402C0001542013 M/s Anmol Financial Services Ltd. Having its office at: 14, Backside, G.F. Dayanand Vihar, Vikas Marg Extn., Delhi92. Through Mr. [ENTITY] Petitioner Versus ([ENTITY] S/o [ENTITY] R/o 99, Rajpur, PO Dankaur District Gautam Budh Nagar, U.P. ([ENTITY] S/o Sh. [ENTITY] R/o Village Gijhour, Sector 53, Noida District Gautam Budh Nagar, U.P. Respondents O R D E R
The present petition has been filed by the petitioner under [SECTION] of the [ACT] seeking appointment of receiver to take possession of vehicle make Santro Car bearing registration No.UP 16W 5522, Chasis No.MALAA51HR9M395640RA, Engine No.G4HG9M698180 which stood hypothecated with the petitioner.
2 Case of the petitioner is that the petitioner is a company duly incorporated under the [ACT] and Sh. [ENTITY] is duly authorized to sign, verify and institute the petition on behalf of the petitioner company. The petitioner company is engaged in the business of lease, finance and loan of vehicles. Respondent No.1 approached the petitioner for the purpose of taking loan for vehicle make Santro Car bearing registration No.UP 16W 5522. A loan agreement bearing No.29L4568 was executed between the parties. Respondent No.2 stood as guarantor. It was agreed that the respondent would hypothecate and create first charge over the said vehicle in favour of the petitioner company. Under the agreement, petitioner disbursed an amount of Rs.1,75,000/ to the respondent and interest amount was Rs.52,500/ which was to be paid from 29.06.2009 to 29.05.2011. Loan amount was to be repaid in 24 installments out of which first installment was of Rs.9,000/ and remaining 23 installments were of Rs.9,500/ each. The respondents were also liable to pay overdue interest/compensation charges for late payment @ 3% compound interest per month. It is claimed that the respondent no.1 was irregular in making the payment of installments. It is claimed that the last payment of Rs.30,000/ was received on 23.12.2011. As on 23.12.2011, a sum of Rs.1,68,815/ was claimed to be lying due against the respondents along with interest @ 36% per annum. Petitioner is having apprehension that respondents may transfer, dismantle or part with the possession of vehicle in question. The agreement entered into between the parties contains arbitration clause which the petitioner intends to invoke. Petitioner has prayed for appointment of Sh. [ENTITY], Recovery Officer of the petitioner company, as receiver to take possession of vehicle make Santro Car bearing registration No.UP 16W 5522, Chasis No.MALAA51HR9M395640RA, Engine No.G4HG9M698180. 3 It has been argued by ld. Counsel for the petitioner that 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 respondents may dispose of the vehicle. It is further argued that there is no necessity to issue notice to the respondents at this stage and exparte order regarding appointment of receiver can be straightway passed. In support of arguments advanced, judgment in case of [PRECEDENT] has been relied in which Hon'ble High Court appointed the receiver to take possession of the vehicle as the respondent had failed to pay the installments. Another judgment relied is in case of [PRECEDENT] in which the order of Trial Court for appointment of receiver was upheld. Another judgment relied upon is in case of [PRECEDENT] 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 application under [SECTION] of the [ACT] merely because no notice has been issued. Next judgment is in case of [PRECEDENT] decided on 20.09.2005 by Hon'ble High Court of Delhi) in which it was held that delay occasioned due to issuance of notice, thereby postponement of interim protection to which the appellant appears entitled, is likely to defeat the object of filing the petition. It was held that Ld. Trial Court ought to have passed an exparte order appointing a receiver to secure possession of the vehicle.
4 Perusal of agreement shows that the vehicle in question can be repossessed by the petitioner as per [SECTION] in case of default by the respondents. As per judgment [PRECEDENT] (supra) and [PRECEDENT]. (supra), there is no requirement of issuance of notice to the respondents before passing an exparte order. An exparte order for appointment of receiver can be passed without issuance of such notice to the respondents. 5 Accordingly, in view of aforesaid judgments and facts and circumstances of the case, a balance of convenience lies in favour of 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 respondents and that its value may depreciate day by day. Consequently, I appoint Sh. [ENTITY], Recovery Officer of the petitioner company, as receiver with directions to take possession of vehicle make Santro Car bearing registration No.UP 16W 5522, Chasis No.MALAA51HR9M395640RA, Engine No.G4HG9M698180 from the respondents 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.
6 The petitioner is directed to refer the matter to the arbitrator within three weeks. 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 within three weeks. In case vehicle is repossessed, compliance report be filed immediately after its repossession, failing which interim order shall stand vacated.
Announced in the open Court ( [ENTITY] ) Dated: 11.01.2013 District Judge and Addl. Sessions Judge, I/C (East) Karkardooma Courts : Delhi