IN THE COURT OF SHRI [ENTITY] : DISTRICT JUDGE & ADDL. SESSIONS JUDGE, I/C (EAST) : KARKARDOOMA COURTS, DELHI Suit No.05/2013 Unique Case ID No.02402C0012342013 [ENTITY] 75, Vijay Block, Second Floor, Vikas Marg, Delhi110092. Petitioner Versus Sh. [ENTITY] S/o Sh. Suresh Chand R/o 185, Main Market, Badarpur Village, Delhi. Respondent 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 Tata Bus bearing registration No.DL 1PB 0353, Engine No. 6B59CNG15790665, Chasis [CASE NUMBER] which stood hypothecated with the petitioner.
2 Case of the petitioner is that the petitioner is a private limited 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 is a nonbanking finance company engaged in the business of leasing, financing and hire purchase of vehicles etc. Respondent made a representation before the petitioner for taking a bus bearing registration No.DL 1PB 0353 on loan cum hypothecation basis. After negotiation, petitioner agreed to the request of respondent. An agreement of loan cum hypothecation No.H15/1318 dated 11.11.2011 was executed between the parties. Under the agreement, petitioner disbursed an amount of Rs.2,75,000/ to the respondent. The respondent availed the loan facility and the vehicle in question was hypothecated with the petitioner company. The loan amount was to be repaid in 23 installments, out of which first advance installment was of Rs.15,600/ and remaining 22 installments were of Rs.15,200/ each. It is claimed that the respondent failed to adhere to the financial discipline and committed willful defaults. As on the day of filing of the present petition, there was default of 8 installments. Petitioner vide notice dated 19.12.2012 recalled the entire loan facility and terminated the agreement. As on 03.01.2013, a sum of Rs. 1,38,910.84 is claimed to be lying due against the respondent. Petitioner is having apprehension that respondent is about to dispose of the hypothecated vehicle. The agreement entered into between the parties contains arbitration clause which the petitioner intends to invoke. Petitioner has prayed for appointment of Sh. [ENTITY], executive of the petitioner, as receiver to take possession of Tata Bus bearing registration No.DL 1PB 0353, Engine No. 6B59CNG15790665, Chasis [CASE NUMBER].
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 respondent may dispose of the vehicle. It is further argued that there is no necessity to issue notice to the respondent 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] [CASE NUMBER] [CASE NUMBER] 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 respondent. As per judgment [PRECEDENT] (supra) and [PRECEDENT]. (supra), there is no requirement of issuance of notice to the respondent before passing an exparte order. An exparte order for appointment of receiver can be passed without issuance of such notice to the respondent. 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 respondent and that its value may depreciate day by day. Consequently, I appoint Sh. [ENTITY], executive of the petitioner, as receiver with directions to take possession of Tata Bus bearing registration No.DL 1PB 0353, Engine No.6B59CNG15790665, Chasis No. 425065CYZ708449 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.
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: 19.01.2013 District Judge and Addl. Sessions Judge, I/C (East) Karkardooma Courts : Delhi