IN THE COURT OF SHRI [ENTITY] : DISTRICT & SESSIONS JUDGE (EAST) : KARKARDOOMA COURTS, DELHI Suit No.162/2013 Unique Case ID No.02402C0231062013 [ENTITY] Plot No.4, Unit No.101, DDA Center, First Floor, District Center, Laxmi Nagar, Delhi110092. Through its authorized representative/ signatory Sh. [ENTITY]. Petitioner Versus [ENTITY], Jalvayy Tower, Sector 56, Gurgaon122001. 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 vehicle make MA DZIRE VXI bearing registration No.HR26BS7645 which stood hypothecated with the petitioner.
2 Case of the petitioner is that the petitioner is a body incorporated under the [ACT] and Sh. [ENTITY] is duly authorized to sign, verify and institute the petition on behalf of the petitioner company. The respondent approached the petitioner company for the purpose of financing under the loancumhypothecation scheme. The respondent requested the petitioner company to finance an amount of Rs.4,75,000/. The respondent agreed to repay the loan amount in 60 monthly installments of Rs.10,625/ each with interest. The respondent agreed to strictly adhere to the repayment schedule. The petitioner company agreed to give the vehicle under the loancumhypothecation scheme. The respondent executed loan agreement, demand promissory note and several other documents in favour of the petitioner company. A loan agreement No.CF8071518 was entered into between the parties. The petitioner company duly paid the aforesaid amount to the respective dealer for the delivery of the said vehicle to the respondent. After availing the loan facility, the respondent failed to adhere to the financial discipline. Several cheques issued by the respondent dishonored/returned back unpaid. The respondent was served with reminders to pay the amount but of no avail. The respondent also failed to make the vehicle in question available for inspection. The loan agreement of the respondent was terminated vide notice dated 08.07.2013. As per the accounts maintained by the petitioner company, the respondent is liable to pay a sum of Rs.4,52,191/ towards principal, interest, penal interest and other dues. Petitioner is having apprehension that respondent may sell away the 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], officer of the petitioner company, as receiver to take possession of vehicle make MA DZIRE VXI bearing registration No.HR26BS7645. 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] 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], officer of the petitioner company, as receiver with directions to take possession of vehicle make MA DZIRE VXI bearing registration No.HR26BS7645 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: 02.08.2013 District & Sessions Judge(East) Karkardooma Courts : Delhi