1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 538 OF 2009 Tata Capital Limited ...Petitioner. Vs. Mujibur Rehman Khan ...Respondent. Mr. Nikhil Mehta i/by KMC Legal Venture for the Petitioner. Mr. Prashant Patil i/by M/s. C.P. & Associates for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 11th November, 2009. P.C.- 1 The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Act), against the Respondent who committed defaults in making installments towards the loan agreement dated 29/04/2008. Only one installment was paid. The fact remains that the Respondent is suffering from the Brain Tumor. In paragraph No.2, of Affidavit in reply dated 30th September, 2009 reflects the same, which reads thus:- “I say that the it is true that by the loan agreement dated 29/4/2008 I have obtained the loan of Rs.7,70,000/- from the Petitioner. I say that after considering my good reputation in business the petitioner had availed me the said loan amount for my business purpose. I say that I am the only member of my family looking after my business. I say that after obtaining the 2 said loan first few installments are regularly paid by me, however after that as I suffered a huge loss in the business due to my health problems. I say that in the year 2005, I have been twice operated due to Brain Tumor. I say that due the said decease it is became impossible for me to travel and to do any kind of work. I say that presently also I am unable to do work without the help of other person. I say that due to this I have suffered heavy loss in the business and due to which I am unable to pay the installments of the loan amount. I say that after the said operations of the Brain Tumor, I am completely handicapped and unable to run my business which was ultimately result in closure of my business.” 2 There is no contra material to the said averments. 3 In view of this, in a situation like this I am only inclined to accept the statement of Respondent to the effect that he will not transfer or create any third party right or interest in so far as his share is concerned in the mother’s property i.e. 29/F, 4th Floor, Roshan Apartments, Kasturba Cross Road, Near Jain Temple, Borivali-East, Mumbai-400 066. This is sufficient to protect the interest of the Petitioner. This protection will continue till the award attains finality. 4 With this, it is clear with the permission/ subject to order of the Court, the Respondent is at liberty to sell the said share. 5 The Petition is accordingly disposed of. No cost. 6 Liberty is granted to the parties to settle the matter finally, in view of the above case. (ANOOP V. MOHTA, J.)