CW 13388/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.13388/2008 Ramswaroop Sharma Versus M/s Mentor India Ltd. Date of Order : 26/03/10 Hon'ble Mr. Justice Ajay Rastogi Mr. Sudhir Jain, for petitioner. Mr. Mahendra Goyal, for respondents Instant petition has been filed assailing ex parte order dt.08/02/2008 (Ann.5) passed by learned trial Judge (Addl. District Judge NO.4, Jaipur City ) on application (No.219/2008) filed by respondent-Co., U/s 9 of the Arbitration & Conciliation Act, 1996 (“Act, 1996”). From the material, it has come on record that vehicle (RJ-14-P-7991) was financed by respondent-Company in favour of petitioner for principal amount of Rs.2.75 lacs for being repayable in 36 equal monthly installments (“EMI”) with each EMI of Rs.11,000/-. Statement of account in respect of present vehicle has been placed on record as Annexure R/1 – according to which, 1st EMI was paid on 15/01/2006 and petitioner continuously paid only nine EMIs upto 16/01/2007 and Rs.80,000/- was deposited upto 10/03/08; however, thereafter no payment was made towards repayment of loan amount; and since there being a provision for invoking CW 13388/08 //2// arbitration proceedings under Cl.22 of the agreement (Ann.R.5), therefore, as an interim arrangement to safeguard the vehicle financed by respondent-Co., an application was filed U/s 9 of the Act, 1996; and taking note of finance amount & repayment made by petitioner besides balance amount of outstanding dues, ex parte order was passed by learned trial Judge on 08/02/2008 (Ann.5) for appointment of Receiver in exercise of powers and notice was issued to the petitioner. Certainly after the notice could be served, petitioner is having an opportunity to make submission but at this stage, the petitioner approached this Court by way of instant petition; and while issuing notices, this Court passed interim order dt. 26/11/2008 that operation of order dt. 08/02/2008 (Ann.5) shall remain stayed and the petitioner was directed not to alienate the disputed vehicle. Counsel for petitioner submits that the for invoking S.9 of the Act, 1996, there has to be a manifest intention of the financing company (applicant) prima facie being established from pleadings on record, to take recourse to the arbitral proceedings or that there is an arbitral dispute requiring initiating proceedings under the Act, 1996; however, order impugned herein does not disclose prima facie material having been CW 13388/08 //3// looked into and it being manifest from material on record. Counsel submits that the order impugned in the light of judgment of Apex Court in M/s Sundaram Finance Ltd Vs. M/s NEPC India Ltd. (AIR 1999 SC 565), is not legally sustainable. Per contra, Counsel for respondent- Co., submits that after the vehicle was financed, stipulating 36 EMIs each of Rs.11,000/-, petitioner paid only nine EMIs and thereafter discontinued to make repayment however, at one time, only Rs.80,000/- were deposited up to 10/03/2008, thereafter no payment was made and taking note of provisions of arbitration under Cl.22 of the agreement, to safe guard the interest, application was filed U/s 9 of the Act, 1996 and taking note of material on record, the trial Judge was justified while passing ex-parte order impugned. Counsel submits that petitioner has an opportunity to submit his arguments before the trial Judge pursuant to the notice being served upon him ; and what has been urge by Counsel for petitioner will certainly be taken note of and examined by the court below while taking final decision on the pending application U/s 9 of the Act, 1996; and at the same time, Counsel submits that the order impugned is appealable U/s 31 of the Act. However, Counsel further submits that CW 13388/08 //4// statement of Account (Ann.R.1) certainly remains uncontroverted and the defence having been taken by the petitioner about amount being paid of Rs.3.50 lacs – reference whereof has been made in his letter (Ann.R/2) was in fact with respect to another vehicle (RJ-14-P- 8853) which is not in any manner relates to the present vehicle for which the dispute has arisen for consideration under proceedings vide order impugned. This Court has considered rival contentions of Counsel for the parties and with their assistance, examined material on record. S.9 of the Act, 1996 authorises the Court to pass an interim order while adopting interim measures before initiating proceedings. It has not been disputed that there is provision under Cl.22 of the agreement to settle the dispute through arbitration; and the dispute raised prima facie appears to be arbitral dispute and Cl.22 has to be invoked for appointment of Arbitrator. In the instant case, if the vehicle is financed and its EMIs has not been paid as alleged, which prima facie appears from the statement of account of vehicle financed (Ann.R/1) subject to the objection being raised by petitioner at appropriate stage, for which the petitioner is having an opportunity before the trial Judge where CW 13388/08 //5// application U/s 9 of the Act, 1996 is pending consideration. In the opinion of this Court, the learned trial Judge cannot be held to be unjustified in taking the decision in exercise of powers while passing ex parte order impugned herein. Even after interim order being passed by this Court on 26/11/2008, as informed, the petitioner has not paid any penny towards present vehicle financed. Taking note whereof, and having gone through the orders impugned, this Court finds no manifest error being committed warranting interference therein. Consequently, writ petition fails and is hereby dismissed. However, petitioner shall have liberty to make submission before the trial Court. Both the parties are directed to appear before the trial Court on 03/04/2010 alongwith certified copy of this order. It is expected from the trial Judge to expedite disposal of application. No costs. (Ajay Rastogi), J. K.Khatri/p.5/ 13388CW08Mar26Ds.doc