1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. ARBITRATION PETITION NO.257 OF 2009 ALONG WITH ARBITRATION PETITION NO.258 OF 2009 ALONG WITH ARBITRATION PETITION NO.259 OF 2009 ALONG WITH ARBITRATION PETITION NO.260 OF 2009 AND ALONG WITH ARBITRATION PETITION NO.261 OF 2009 L & T Finance Ltd. .... Petitioner vs Roadlines Corporation Pvt.Ltd & 2 ors. .... Respondents Mrs.Shakuntala Joshi i/b. S.I. Joshi & Co. for the petitioner. Mr. Zakir Ali i/b. Ashok Singh for respondents 1 and 2. Mr.S.R.Shrivastav i/b. A.S. Pal for respondent no.3. Ms.Neha Tapekar, representative of Court Receiver present. CORAM: ANOOP V. MOHTA, J. DATE : 29th August, 2009 JUDGMENT: 1 The petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Act), as the Respondents failed to make the payment as per the agreements of Loan-cum-Hypothecation. In all these matters, the respondents are also common. The total amount due is above Rs.2.50 crores. There are different and separate agreements between the parties in all these 2 matters. 2 On 9.4.2009 this Court has passed order as the respondents consented to deposit Rs.60 lacs within a period of three weeks. The respondents failed to do so. On 10.06.2009, the respondents expressed its inability to make the payment within three weeks. By order dated 9.4.2009, this Court has made the position very clear that the respondents, if failed to make the payment, the Court Receiver, High Court, Bombay shall forthwith take possession of all the five vehicles and shall move the Court for further direction in all these matters. 3 On 2.7.2009, the respondents appeared and again expressed their inability to make the payment and however, makes statement that they are ready to deposit Rs.10 lacs by 15.07.2009, Rs.20 lacs by furnishing Bank Guarantee by 15.7.2009. The respondents were further directed to pay the balance amount of Rs. 50 lacs by furnishing the Bank Guarantee by 20.08.2009. All these concessions were granted to the respondents as background was made with regard to the financial position because of recession in the market. The last chance was given. It was also made clear that by 15.07.2009, if the respondents fail to comply with the first part of the order, the petitioners were at liberty to take possession of the vehicles by seeking recourse through police help, if necessary and sell the vehicles. The Court has even extended the time to make the payment by 20.08.2009. It is also directed not to take coercive steps till then. On 16.07.2009 the chamber summons was not pressed. 3 4 Time was sought again on the ground that there is some dispute/problem with regard to the contents of the Bank Guarantee. Ultimately, last chance was granted on 12.08.2009 to the respondents to furnish the Bank Guarantee as per the law and the requirement of the office. 5 Now, the learned counsel appearing for the respondents makes statement that they have no instructions in the matter from the respondents. 6 The petitioner’s apprehension as averred and considering the conduct of the respondents throughout, it is very clear that the respondents have been using the said vehicles without making due payment and in fact, sought time from the Court by expressing so called their inability, in the background of recession and/or financial conditions and now as recorded, the respondents not even ready to comply with the orders passed by this court from time to time. 7 The learned counsel appearing for the petitioner further makes statement that the whereabouts of the said vehicles are not known. The respondents are not forwarding this information inspite of repeated communication and requests. 8 All ingredients as necessary under Order 40 and Order 39 of the Code of Civil Procedure are available. The averments made in the petition now remained un-controverted and in fact in the present case, substantiated even by the conduct of the respondents. 4 9 In view of this, I am inclined to grant prayers (a) and (g) of each petition. The prayers (a) and (g) of Arbitration Petition No.257/2009 read thus: (a) Pending the hearing and final disposal of the arbitration proceedings, Court Receiver, High Court, Bombay be appointed as a Receiver under Order XL Rule 1 of C.P.C. In respect of Equipments being 1 No. of Volvo FM 12 380 6x4 Tractor fitted with 11R20 Radia Tyres (MRF), having Chasis No. 866744 and Engine No.561792 and 1 No. of 16 Wheelers Low Bed Trailer with 31”6’ loading bed capacity of 80 ton, width 11 ft built with heavy duty more particularly described in Exhibit “F” to the Petition hereto, with a direction to hand it over to the petitioner and petitioner be allowed to sale by private treaty the said Equipment. (g) Pending the hearing and final disposal of the arbitration proceedings, the Respondent no.1 and 2 be directed to deposit Rs.34,79,614/- (Rupees Thirty four lacs seventy Nine thousand Six hundred and fourteen only) being the claim of the petitioner as of 12.01.2009 as per particulars of claim being Exhibit “E” to the petition. The prayers (a) and (g) of Arbitration Petition No.258/2009 read thus: (a) Pending the hearing and final disposal of the arbitration proceedings, Court Receiver, High Court, Bombay be appointed as a Receiver under Order XL Rule 1 of C.P.C. In respect of Equipments being i) 1 No. of Volvo FM 12 380 6x4 Tractor fitted with 11R20 Radia Tyres (MRF), having Chasis No. 866390 and Engine No.557205 and Registration No. NL-01D-1933 and ii) 1 No. of 16 Wheelers Low Bed Trailer with 31”6’ loading bed capacity of 80 ton, width 11 ft built with heavy duty more particularly described in Exhibit “F” to the Petition hereto, with a direction to hand it over to the petitioner and petitioner be allowed to sale by private treaty the said Equipment. (g) Pending the hearing and final disposal of the arbitration proceedings, the Respondent no.1 and 2 be directed to deposit Rs.33,76,370/- (Rupees Thirty three lacs seventy six thousand three hundred seventy only) being the claim of the petitioner as of 14.01.2009 as per particulars of claim being Exhibit “E” to the petition. The prayers (a) and (g) of Arbitration Petition No.259/2009 read thus: (a) Pending the hearing and final disposal of the arbitration proceedings, Court Receiver, High Court, Bombay be appointed as a Receiver under Order XL Rule 1 of C.P.C. In respect of Equipment being 1 No. Punjab Engineering 86’ long Semi Low bed Trailer with loading bed of 75’ in length and 10’ 3” in width having extra wide Triple Axle more particularly described in Exhibit F to the petition hereto, with a direction to hand it over to the petitioner 5 and petitioner be allowed to sale by private treaty the said Equipment. (g) Pending the hearing and final disposal of the arbitration proceedings, the Respondent no.1 and 2 be directed to deposit Rs.12,50,221/- (Rupees Twelve lacs fifty thousand two hundred and twenty one only) being the claim of the petitioner as of 12.01.2009 as per particulars of claim being Exhibit “E” to the petition. The prayers (a) and (g) of Arbitration Petition No.260/2009 read thus: (a) Pending the hearing and final disposal of the arbitration proceedings, Court Receiver, High Court, Bombay be appointed as a Receiver under Order XL Rule 1 of C.P.C. in respect of Equipments being Volvo FM 400 6x4 Heavy Duty Tractor fitted with 11R20 Radia Tyres (MRF), having Chasis No. 869319 and Engine No.017007, more particularly deswcribed in Exhibit “F” to the petition hereto, with a direction to hand it over to the petitioner and petitioner be allow4ed to sale by private treaty the said equipment. (g) Pending the hearing and final disposal of the arbitration proceedings, the Respondent no.1 and 2 be directed to deposit Rs.32,16,042/- (Rupees Thirty two lacs Sixteen thousand forty two only) being the claim of the petitioner as of 12.01.2009 as per particulars of claim being Exhibit “E” to the petition. The prayers (a) and (g) of Arbitration Petition No.261/2009 read thus: (a) Pending the hearing and final disposal of the arbitration proceedings, Court Receiver, High Court, Bombay be appointed as a Receiver under Order XL Rule 1 of C.P.C. In respect of 2 Nos. of Equipments being 1 No. of FM 400 6x4 Tractor, having Chasis No.l8971496 and Engine No.043232 and 1 No. of Extra Long 16 wheelers low bed 75 ft. Long Trailer built with Heavy Duty, more particularly described in Exhibit “F” to the Petition hereto, with a direction to hand it over to the petitioner and petitioner be allowed to sale by private treaty the said Equipments. (g) Pending the hearing and final disposal of the arbitration proceedings, the Respondent no.1 and 2 be directed to deposit Rs.68,70,139/- (Rupees Sixty eight lacs seventy thousand one hundred thirty nine only) being the claim of the petitioner as of 12.01.2009 as per particulars of claim being Exhibit “E” to the petition. 10 In the result, the petitions are allowed in terms of prayers (a) and (g). It is made clear that this Court has already ordered to have police protection/assistance, if necessary, but to take steps pursuance to orders in terms 6 of prayer (a). 11 As order dated 9.4.2009 was passed by consent of the parties and as this Court has granted extension at the request of the respondents and now the respondents are not at all complying with the same, even earlier direction/order given by this court, such conduct of the respondents itself is objectionable. However, at this stage, it is sufficient apart from above to direct the respondents to disclose the whereabouts of the said vehicles within three weeks. 12 All the petitions are allowed accordingly. No costs. (ANOOP V. MOHTA, J.)