IN THE COURT OF SHRI [ENTITY] : DISTRICT& SESSIONS JUDGE (EAST) : KARKARDOOMA COURTS, DELHI Suit No.116/2014 Unique Case ID No.02402C0272962014 M/s [ENTITY]. Petitioner Versus Sh. [ENTITY] S/o Sh. Kashmir Singh R/o 214, Patel Marg, GZB (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 vehicle bearing registration No.HR 38K 6977, Chasis No.4260ZICW2711009, Engine No.30C62264031 which stood hypothecated with the petitioner. 2 Case of the petitioner is that the petitioner is a company limited by shares and 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 carrying on the business of finance. The respondent approached the petitioner for the purpose of finance of vehicle bearing registration No.HR 38K 6977 and the petitioner financed the same to respondent. A loan agreement No.H12/1582 dated 12.10.2012 was executed between the petitioner and the respondent. Under the agreement, petitioner financed a sum of Rs.3,75,000/ to the respondent and total amount to be recovered was Rs.5,12,800/ including finance charges which was payable in 28 monthly installments w.e.f. 12.11.2012 to 12.03.2015. The respondent was also liable to pay over due interest/compensation charge for late payment @ 3% compound interest p.m. It is claimed that the respondent was very irregular in making payment to the petitioner company despite numerous communications. It is claimed that as on the date of filing of the petition, the respondent is liable to pay an amount of Rs.3,19,007/ to the petitioner along with interest @ 36% per annum. Petitioner is having apprehension that respondent may transfer, dismantle or part with the possession of 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] as receiver to take possession of vehicle bearing registration No.HR 38K 6977, Chasis No.4260ZICW2711009, Engine No.30C62264031. 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] as receiver with directions to take possession of vehicle bearing registration No.HR 38K 6977, Chasis No.4260ZICW 2711009, Engine No.30C62264031 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.
7 In case vehicle is repossessed, receiver shall report to the local police station and shall submit the compliance report before this Court within three days of the repossession of the vehicle in question. The copy of the order be given to the Receiver on his furnishing complete details of his residence, contact number etc. along with proof.
Announced in the open Court ( [ENTITY] ) Dated: 24.09.2014 District & Sessions Judge (East) Karkardooma Courts : Delhi