- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 1083 OF 2009 IN ARBITRATION PETITION No. 261 OF 2008 L & T Finance Ltd., a Company ... Petitioner Vs. Mr. Bastiram Udviram Mistri & Anr. ... Respondents Mrs. S. I. Joshi , for the Petitioner. Ms. Anita Patil i/b Shilpa Kapil for Respondent No.1. Mrs. Palsule-Desai, AGP for the respondent No. 2. CORAM : V. M. KANADE, J. DATE : AUGUST 31, 2009. PC :- 1. Heard the learned counsel appearing for the petitioner and the counsel appearing on behalf of respondent No.2. The respondent No.2 has filed this Notice of Motion seeking following reliefs- “(a) That this Hon’ble Court may pleased to frame and decide the preliminary point of maintainability of present Arbitration Petition in view of Sec.61-G of Indian Forest Act as amended by Gujrat Amendment Act 1983. (b) That this Hon’ble Court be pleased to discharge the Court Receiver in respect of vehicle bearing Unit No. JRC 01262, Caterpillar 424 B, Backnoe - 2 - Loader having Chasis No. 28261 F with Engine No. 544001358, appointed in the above matter to have symbolic possession of the Receiver and to have his metal board on the said vehicle removed. (c) That the cost of Notice of Motion be provided. (d) For such other and further reliefs as this Hon’ble Court may deem fit and proper in the circumstances of this case.” 2. The petitioner has filed this petition under section 9 of the Arbitration & Conciliation Act, 1966 against the respondent Nos. 1 and 2. The petitioner is a Finance Limited Co., carrying out the business of providing finance to various customers as per the requirement and as per the proposal submitted to them from time to time. The respondent No.1 filed the proposal with the petitioner for a term loan facilities for an amount of Rs.16,77,000/- for the purchase of one No. Caterpiller 424 B Bacljpe Loader on loan- cum-hypothecation basis. The respondent No.1 however, committed several defaults in repayment of the loan and as a result of which the petitioner addressed a letter dated 30-1-2008 terminating the agreement and called upon the respondent No.1 to repay the said loan along with interest. It appears that the said vehicle was seized by the Forest Department of the Gujrat Government under the provisions of the Forests Act. The respondent No.1 gave a reply to the said letter by the letter dated 27th February 2008 informing the petitioner that the Forest - 3 - Department has informed that the respondent No.2 had taken taken possession of the equipment. The petitioner thereafter informed the respondent No.2 that the vehicle which was seized, was purchased by respondent No.1 by obtaining a loan from the petitioner and that the said vehicle was hypothecated with them. The petitioner thereby requested the respondent No.2 to return the equipment to the petitioner by its letter dated 5th February 2008. Thereafter the present petition was filed under section 9 of the Arbitration & Conciliation Act against the respondent Nos. 1 and 2. This Court was pleased to pass order on 16th January 2009 whereby this Court directed the Court Receiver to take possession of the property and the Court Receiver was appointed in terms of prayer Clause (a) of the petition, except the bracketed portion in blue. Thereafter on 13th February 2009 the Legal Superintendent of the Conservation of Forest Gandhi Nagar, Circle Gandhi Nagar informed the Court that the vehicle has been confiscated by the respondent No.2 and also informed that the Court Receiver would be allowed to take symbolic possession of the said vehicle of the said vehicle and will also be allowed to put his metal board on the said vehicle intimating that the Court Receiver is appointed in respect of the said vehicle by an order of this Court dated 16-1-2009. Thereafter this Notice of Motion has been taken out by the respondent No.2. 3. The learned counsel appearing on behalf of respondent No.2 firstly submitted that this Court has no jurisdiction to entertain this petition as against respondent No.2, in view of specific bar under section 61-G of the Forest Act, 1927 as amended - 4 - by the Gujrat Amendment Act 1983. Therefore, it is submitted that the order of appointment of the Court Receiver is liable to be set aside. 4. The learned counsel appearing on behalf of respondent No.2 invited my attention to the petition. The learned counsel for the petitioner submitted that the petition was maintainable as against respondent No.2 also and that the interim order which was passed by this Court was only in respect of symbolic possession. She submitted that respondent No.2 was represented and appeared in the Court on 13th February 2009 and therefore, it was not open for respondent No.2 to raise the issue of jurisdiction. 5. In my view there is substance in the submission of the learned counsel appearing on behalf of respondent No.2, in view of the provisions of section 61-G of the Forests Act 1927, as amended by Gujrat Act 1983, which reads as under- “61-G. Bar of jurisdiction in certain cases :- whenever any forest produce belonging to the State Government or any tool, rope, chain, boat, vehicle or cattle used in committing any offence is seized under sub-section (1) of section 52 the authorized officer under section 61-A or the officer specially empowered under section 61-C or the Sessions Judge hearing an appeal under section 61-D shall have and, notwithstanding anything to the contrary contained in this Act or in the Code of Criminal - 5 - Procedure, 1973 or in any other law for the time being in force, any other officer, court, tribunal or authority shall not have, jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property.” 6. The perusal of the aforesaid provision reveals that except the Sessions Judge hearing an appeal under section 61-D or the officer specially empowered under section 61-C, other Court, Officer, Tribunal or authority shall not have any jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of such property. The provision also clearly stipulates that the said provision shall have an over-riding effect over any other law. Therefore, in my view this Court would not have jurisdiction to pass any orders against respondent No.2 herein, in respect of custody, possession, delivery of the said vehicle, seized by the respondent No.2 under the Indian Forest Act, 1927. The interim order therefore, passed against respondent No.2 is recalled. The Notice of Motion is allowed in terms of prayer Clauses (a) & (b) in so far as respondent No.2 is concerned. The Notice of Motion is accordingly disposed of in above terms. 7. Place the Arbitration Petition for hearing after 2 weeks. Sd/- [ V. M. KANADE, J.]