IN THE COURT OF SHRI [ENTITY] : DISTRICT& SESSIONS JUDGE (EAST) : KARKARDOOMA COURTS, DELHI Suit No.93/2014 Unique Case ID No.02402C0209332014 M/s [ENTITY]. Petitioner Versus Sh. [ENTITY] S/o Sh. K.M. Gaur R/o B2/A, West Vinod Nagar, Gali No.3, Delhi110092. 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.DL 1PB 6267, Chasis No.425065BWZ00791, Engine No.6B59CNGNA42623128 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 is a nonbanking finance company engaged in the business of leasing, financing and hire purchase of vehicles etc. In may 2013, the respondent approached the petitioner for purchase of vehicle bearing Registration No.DL 1PB 6267 and the petitioner financed the same to respondent. An agreement of loan cum hypothecation dated 02.05.2013 was executed between the petitioner and the respondent. Under the agreement, it was agreed that respondent would hypothecate and create first charge over the said vehicle in favour of the petitioner company, as such the vehicle stood surety for due performance of the agreement. Under the agreement, petitioner disbursed a sum of Rs.4,50,000/ to the respondent and hypothecation charges were Rs.1,98,450/. The loan amount was repayable by the respondent in 35 installments commencing from 02.06.2013 to 02.04.2016. The first installment was of Rs.19,450/ and remaining installments were of Rs.18,500/. It is claimed that the respondent was very irregular in making payment to the petitioner company despite numerous communications. The respondent has paid only 5 installments out of total 14 due installments and he defaulted in 9 installments. It is claimed that as on 10.07.2014, the respondent is liable to pay an amount of Rs.2,09,892/ to the petitioner. 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 vehicle bearing registration No.DL 1PB 6267, Chasis No.425065BWZ00791, Engine No.6B59CNGNA 42623128.
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], authorized representative of the petitioner, as receiver with directions to take possession of vehicle bearing registration No.DL 1PB 6267, Chasis No.425065BWZ00791, Engine No.6B59 CNGNA42623128 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: 06.08.2014 District & Sessions Judge (East) Karkardooma Courts : Delhi