1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION (LODGING) NO. 1198 OF 2009 Kotak Mahindra Prime Ltd. ...Petitioner. Vs. Deepam B. Thanawala ...Respondent. Mr. Gaurav Shrivastav i/b. Mr.Prasad Das for the Petitioner. Mr. Vivek Kantawala for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 6th January, 2010. P.C.- 1 The petitioner has invoked Section 9 of The Arbitration & Conciliation Act, 1996 (for short, the Arbitration Act) against the respondent, who is in default and not making the timely due/instalments as per the Agreement in question. 2 Considering the averments made in the petition, based upon the averments, on 8.10.2009 this Court has granted exparte order in terms of prayer (d) while admitting the petition. Rule was made returnable on 19.11.2009. 3 The respondent appeared and has filed affidavit dated 10.12.2009. The respondent has also filed ledger account for the period from 1.4.2009 to 9.12.2009 and the averments made in para 7 of the affidavit are as 2 under: “7 With reference to para 3.4 I deny that I have committed intermittent defaults in making repayment of the installment amount as agreed upon by the loan agreement as alleged or at all. I agree that the installment of Rs.24,815/- was due on 10th February 2009. I state that as stated hereinabove I paid the amount in cash on 20th February 2009 and hence there was no default as on the date as alleged or at all. I state that I have received the notice dated 17.2.2009 after payment of installment made by me on 20.2.2009 and hence the question of any default does not and cannot arise. Even assuming that the said Notice was received and thereafter though I made payment of installments, a careful perusal of the Notice would substantiate that I was given only 3 days to make payment of the said amount, which amount was paid by me on 20.2.2009 which can be evidenced from the perusal of Exhibit “2” hereto.” 4 In view of above, in my view, the petitioner has filed this Petition by suppressing various facts and obtained such exparte order of injunction in terms of prayer (d) with respect to immovable property of the respondent. Admittedly, the said immovable property was not mortgaged at all. In my view, the petitioner has misused the power by invoking Section 9 of the Arbitration Act and obtained such order. The action is uncalled for. The financial institution like the petitioner, considering the present facts and circumstances, should not have acted in such high handed manner only because there is a Finance Agreement. The averments as well as statements so referred above and the Ledger Account shows that the respondent was paying timely instalment. This, in my view, also amounts to harassment which just cannot be accepted. 3 5 Resultantly, the Petition is dismissed with costs at Rs.15,000/- (Rupees fifteen thousand only) to be paid within two weeks. The Stay stands vacated. (ANOOP V. MOHTA, J.)