IN THE COURT OF SHRI [ENTITY] : DISTRICT JUDGE (EAST) cum ADDL. SESSIONS JUDGE, KARKARDOOMA COURTS, DELHI Suit No. 21/2011 Unique Case ID No.02402C0092152011 M/s [ENTITY] Having its office at: 14, Dayanand Vihar, backside, Ground Floor, Vikas Marg Extn., Delhi92 Through Mr. K.K. Sharma. Petitioner Versus ([ENTITY] S/o Sh. Muktair Singh R/o C159, Ganga Vihar, Gokulpuri, Delhi110094. ([ENTITY] S/o Rais Ahmed R/o 4976, Gali No.15, Ajeet Nagar, Gandhi Nagar, Delhi31. Respondents S.No.21/11 M/s [ENTITY] Vs. [ENTITY] etc. Page 1 of 6 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 the vehicle hypothecated with the petitioner.
2 Case of the petitioner is that a loan agreement bearing no.10L4923DL1VA3831 dated 10.2.2010 was entered with the respondent no.1 as the borrower, respondent no.2 as guarantor and the petitioner as lender in respect of Mini Bus bearing registration No.DL 1VA 3831 Model 2003. The loan agreement was signed by the respondents. The vehicle stood hypothecated with the petitioner as security to the loan advanced to the respondent. Loan amount of Rs.1,55,000/ was given to the respondents on which interest was Rs.46,500/. The agreed value of loan was Rs.2,01,500/. The loan was to be repaid in 24 installments i.e. first installment of Rs.7900/ and 23 installments of Rs.8800/. The respondents were also liable to pay overdue interest/compensation charge for late payment @ 3% per month. The respondents did not make the payment as agreed despite several demands. The last payment received by the petitioner was on 23.10.2010 for a sum of Rs.13,500/. It is claimed that as on 16.3.2011, the respondent was liable to pay a sum of Rs.1,01,891/ and also interest @ 24% per annum. There is an arbitration agreement between the parties and petitioner intends to invoke the same. Petitioner has prayed for appointment of Sh. [ENTITY] as receiver to take possession of aforesaid vehicle. 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 [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] (1999) 2 SCC 479 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. Another authority relied upon is The [PRECEDENT] in which it was held that if agreement permits the financier to take possession of the financed vehicle, there is no legal impediment on such possession being taken. 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 clause 6.1(iii) 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 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] as receiver with directions to take possession of the vehicle make Mini Bus bearing registration No.DL 1VA 3831 Model 2003 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. 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. 6 Compliance report regarding status of vehicle and appointment of vehicle 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: 18.05.2011 District Judge (East) Addl. Rent Control Tribunal Karkardooma Courts : Delhi