IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NO.218 OF 2003 M/s.India Cements Capital and Finance Limited, (formerly known as M/s.Aruna Sugars Finance Ltd.), No.38,Sterling Road, Chennai-600 034. .. Appellant Vs. 1.M/s.Shree Balaji Industries, rep. by its Prop. Mr.Dakshinamurthy, L-46,Industrial Estate, Ambattur, Chennai-600 058. 2.M.P.Sukumaran .. Respondents This O.S.A. has been preferred under Clause 15 of Letters Patent read with Order 36 Rule 11 of O.S. Rules against the order dated 16.12.2002 made in Application No.763 of 2002 on the file of this court. For Appellant : Ms.Jayanthi Venkatesh For Respondents : No appearance - - - - JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the learned Single Judge made in Application No.763 of 2002, whereby an order of appointment of an Advocate Commissioner to seize the machinery set out in the schedule annexed to the application and to deliver possession was sought for, but the learned Single Judge refused to permit the appellant/applicant to repossess the machineries. Aggrieved over the same, the petitioner has brought forth this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2.The Court heard the learned counsel for the appellant. Despite service of notice, the respondents have not appeared. 3.The appellant made an application for appointment of an Advocate Commissioner, alleging that the parties entered into a Hire Purchase Agreement; that the respondents committed default in payment; that by virtue of the arbitration clause, the arbitration proceedings were initiated; that by virtue of the hire purchase agreement, the appellant/applicant was the owner of the machineries and they were entitled to repossess the same; that since arbitration proceedings have already been initiated, invoking Section 9 of the Act, the machineries have got to be preserved and hence, the application was filed. 4.The application was strongly objected to by the respondents' side, stating that the machineries were in good condition; that it was only loan transaction and not hire purchase agreement; that the applicant was not the owner of the machineries, but the respondents and under these circumstances, the application was to be dismissed. 5.The learned Single Judge, on enquiry, made an order that it was a case where machineries were to be preserved and all the contentions raised by the learned counsel could be raised before the arbitral proceedings and hence the petitioner could not be permitted to repossess the machineries. Aggrieved over that part of the order, the petitioner has brought forth this appeal. 6.The only contention put forth by the learned counsel for the appellant is that it is true, as per the order of this court, an Advocate Commissioner was appointed, an inventory was taken and the machineries are now preserved; that now the arbitral proceedings are over and an award has also been passed and under these circumstances, if they are kept idle, they are likely to lose their value and hence permission has got to be granted. 7.The Court after hearing the learned counsel for the appellant and also looking into the materials available, is of the considered opinion that no such permission could be granted. This appeal is directed against the order of the learned Single Judge in the application, seeking appointment of an Advocate Commissioner for taking inventory and also for preserving the machineries and also for repossession of the machineries, but repossession was denied. It was mainly contended by the appellant's side that it was a hire purchase agreement and thus, they are the owners of the property in view of the default in payment. On the contrary, it was contended by the respondents' side in the application that they are the owners of the property and it was only the loan transaction. Under these circumstances, the learned Single Judge thought it fit that the machineries have got to be preserved till the disposal of the arbitral proceedings, but at the same time, the applicant should not be permitted to repossess the same. The denial of the repossession of the machineries is the subject matter of this appeal. At this https://hcservices.ecourts.gov.in/hcservices/ juncture, it is pertinent to point out that merely because arbitral proceedings were over and an award has been made, the appellant/applicant cannot be permitted to repossess the machineries. It is also a part and parcel of the contention put forth before the arbitral proceedings. There should have been a finding in the arbitral proceedings as to the possession of the machineries. If the appellant/applicant is satisfied with that part of the award, it is well and good and if not satisfied, they can take necessary proceedings in respect of the same. With that observation, this O.S.A. is disposed of. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Vvk To The Sub Asst.Registrar, Original Side, High Court, Madras. O.S.A.NO.218 OF 2003 RA {CO} TP/11.7.08. https://hcservices.ecourts.gov.in/hcservices/