SBCM (Arbitration) Appeal No.1424/2008 City Financial Consumer Finance India Ltd. Vs. Dilip Lunawat & Ors. 1 S.B. Civil Misc. (Arbitration) Appeal No.1424/2008 City Financial Consumer Finance India Ltd. vs Dilip Lunawat & Ors. DATE OF ORDER : - 16.10.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. NK Rastogi, for the appellant. <><><> Heard learned counsel for the appellant. The appellant is aggrieved against the order dated 18th May, 2007 by which the appellant's application for appointment of receiver filed under Section 9 of the Arbitration and Conciliation Act, 1996 was dismissed by the learned District Judge, Jodhpur. The application was dismissed on the ground that appellant-financier failed to show any dispute, which can be referred to the arbitrator and no case is made out for grant of interim relief. Learned counsel for the appellant submitted that the appellant financed the respondents to the tune of Rs.45 lacs. It was repayable in 180 equal installments. The SBCM (Arbitration) Appeal No.1424/2008 City Financial Consumer Finance India Ltd. Vs. Dilip Lunawat & Ors. 2 respondents mortgaged their property and also requested for depositing the original title deed with the appellant company, but the respondents did not deposit the title deeds. In view of the above, the respondents committed breach of the contract for which company gave notices to the respondents on 8th July, 2006 and 10th July, 2006. On these facts, the appellant prayed that the respondents should be restrained from selling his property. The civil court held that the appellant failed to show that it is the dispute which requires to be resolved and, therefore, no case is made out for entertaining the application under Section 9 of the Act of 1996. The appellant came with the specific case that they financed the respondents to the tune of Rs.45 lacs and which was payable in 180 equal installments. Their contention is that the respondents breached the conditions of the contract, but they failed to show that there is any dispute to resolve that arbitrator is required to be appointed. So far as the sale of the property, if mortgaged, is transacted then that is always subject to mortgage and further mortgaging a property does not prevent the owner of the property from selling the property and the sale is SBCM (Arbitration) Appeal No.1424/2008 City Financial Consumer Finance India Ltd. Vs. Dilip Lunawat & Ors. 3 always subject to that mortgage liability. The appellant also has equally efficacious remedy and appointment of the receiver cannot be justified in the case like present one. In view of the above, I do not find any illegality in the order passed by the trial court. Hence, the appeal of the appellant is dismissed having no merit. (PRAKASH TATIA), J. c.p.goyal/-