1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 157 OF 2009 Kotak Mahindra Bank Ltd. ...Petitioner. Vs. Rais Sharef Khan & Ors. ...Respondents. Mr. Rahul Mehta i/by Ms. Disha Karambar for the Petitioner. Mr. Umesh S. Borade for Respondent No.2. Mr. K.L.Vyas, Court Receiver present. CORAM :- ANOOP V. MOHTA, J. DATED :-17th SEPTEMBER, 2009. P.C.- 1 The Petitioner has taken out this Petition under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Act). The Respondents not make the payment, though agreed as per the agreement, which also provides Arbitration Clause. There is no dispute about the jurisdiction. 2 Considering the fact that there is no denial to the averments so made covering the default as well as the apprehension made, this court on 24th March, 2009, granted ad-interim relief in terms of prayer clause (g) and on 4th May, 2009 granted prayer clause (a) except bracketed portion. But, as the vehicle was not traceable, it could not be executed. 2 3 The Petitioner, therefore, amended the petition and brought on record the details of the vehicle. It is clear that Respondent No.1 has using the said vehicle without making due payments. Respondent No.2 who has filed an affidavit of reply, to the denial of the basic averments against Respondent No.1. 4 The Petitioner has already invoked the Arbitration Proceeding and it is pending. In view of uncontroverted averments and considering the aspect of the depreciation of the machinery like vehicle and as all elements are available to grant relief under Order 40 Rule 1 of the Code of Civil Procedure (CPC), I am inclined to grant this Petition in terms of prayer clause (aa). 5 The Petitioner has invoked and wants to utilize the Court Receiver’s agency to attach or to seize the vehicle, even out of State also. Thereafter, wants to sell the property by private agency. Therefore, it is necessary for them to pay the requisite percentage of fee/ Commission of the Court receiver on the sale amount. 5 It is made clear that the Petitioner to undertake to pay the requisite percentage/ fee/ commission of the Court Receiver on the sale amount as per Rule 591 of the Bombay High Court, Original Side Rules. It is permitted to adjust the amount, if any, deposited by the Petitioner with the Court Receiver. 6 The relief in terms of prayer clause (g), as granted earlier, shall 3 continue. 7 However, the liberty is granted to the Respondents to settle the matter and or furnish the security to the satisfaction of the Petitioner. The liberty is also granted to the Respondents to take appropriate pleas or defences before the Arbitral Tribunal. 8 The learned counsel appearing for the Petitioner makes statement that they are not pressing any relief in respect of Respondent No.2 in the Petition. The liberty is also granted to Respondent No.2 to raise appropriate plea before the Arbitral Tribunal. 9 Resultantly, the Petition is allowed in terms of prayer clause (aa) and (g) with liberty. No order as to costs. (ANOOP V. MOHTA, J.)