IN THE COURT OF SHRI [ENTITY] : DISTRICT & SESSIONS JUDGE (EAST) : KARKARDOOMA COURTS, DELHI Suit No.94/2013 Unique Case ID No.02402C0159552013 [ENTITY] 75, Vijay Block, Second Floor, Vikas Marg, Delhi110092. Petitioner Versus Sh. [ENTITY] S/o Sh. Krishan Sharma R/o Village Morna, Sector35, Noida, Gautam Budh Nagar, UP. 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.DL1P A7526, Chasis No.412060KZZ12820, Engine No.ESN39882946 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 approached the petitioner in August, 2011 for taking a TATA bus bearing registration No.DL1P A7526 on loan cum hypothecation basis. After negotiation, petitioner agreed to the request of respondent. An agreement of loan cum hypothecation dated 21.08.2012 was executed between the parties. Under the agreement, petitioner disbursed an amount of Rs.2,00,000/ to the respondent and hire charges were Rs.44,100/ which was to be repaid in 17 installments of Rs.14,500/each from 21.09.2012 to 21.01.2014. One Sh. [ENTITY] stood as guarantor for repayment of the loan amount. It is claimed that the respondent was irregular in making the payment of installments. Petitioner informed the respondent of the default in payment of monthly installments vide letter dated 3.5.2013 but to no avail. It is claimed that respondent has paid 3 installments out of 7 due installments and still 4 installments are lying due. As on 06.05.2013, a sum of Rs.92,894.89 is claimed to be lying due against the respondent. Petitioner is having apprehension that respondent is contemplating to shift the vehicle elsewhere. The agreement entered into between the parties contains arbitration clause which the petitioner intends to invoke. Petitioner has prayed for appointment of Sh. [ENTITY], Authorized representative of the petitioner, as receiver to take possession of TATA bus bearing registration No.DL1P A7526, Chasis No.412060KZZ12820, Engine No.ESN39882946.
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] [ENTITY] Tours Private Ltd [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 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], Authorized Representative of the petitioner, as receiver with directions to take possession of TATA bus bearing registration No.DL1P A7526, Chasis No.412060KZZ12820, Engine No.ESN39882946 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: 06.07.2013 District & Sessions Judge(East) Karkardooma Courts : Delhi