1 13.arbp.446.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION skt ARBITRATION PETITION NO.446 OF 2010 L & T Finance Ltd. ... Petitioner Vs. Prithvi Associates & Anr. ... Respondents ...... Ms.Shakuntala Joshi i/by S.I.Joshi & Co. for the Petitioner. None for Respondent No.1. Mr. R.V.Talasikar a/w. Mr.S.C.Choudhary for Respondent No.2. ...... CORAM : S.J. VAZIFDAR, J. DATE : OCTOBER 6th, 2010. P.C. 1 This is an application under Section 9 of the Arbitration and Conciliation Act, 1996. 2 According to the Petitioner, an amount of about Rs.1,50,00,000/- is due and payable by the Respondents. The claim against Respondent No.1 arises under a loan-cum-hypothecation agreement. Five vehicles were hypothecated under this agreement in favour of the Petitioner. Respondent No.2 is a guarantor. 3 Respondent No.1 is absent though served. As far as Respondent No. 1 is concerned, the Petitioner is entitled to the reliefs claimed. However, 2 13.arbp.446.10.sxw no relief can be granted against Respondent No.2 as there is no arbitration agreement between the Petitioner and Respondent No.2. 4 Respondent No.2 executed a guarantee which does not contain an arbitration clause. Reliance is placed on clause-11 of a declaration which was also executed when the guarantee was furnished. By clause-11, Respondent No.2 stated that he has read and understood the terms and conditions as stipulated by the Petitioner and agreed to be bound by the same. These terms and conditions obviously referred to the terms and conditions of the guarantee, which was separately executed by Respondent No.2. It does not relate to the terms and conditions in the loan-cum-hypothecation agreement. The arbitration clause in the loan- cum-hypothecation agreement therefore, cannot be said to have been incorporated in the guarantee executed by Respondent No.2. 5 In these circumstances, the above petition is disposed of by the following order : (i) In view of the statement made by Respondent No.2 that the vehicles are not in his custody or premises no orders against Respondent No.2. (ii) The petition is made absolute in terms of prayer (a) except the words bracketed in red. (iii) The petition is made absolute in terms of prayer (e) 3 13.arbp.446.10.sxw limited to item 1 of Exhibit “G”. (iv) Till the Court Receiver takes possession order in terms of prayer (d) except the words bracketed in red. (v) The Court Receiver shall appoint Respondent No.1 as his agent on the usual terms and conditions including as to security and royalty. (vi) In the event of Respondent No.1 refusing to accept the agency of the Court Receiver, the Court Receiver may appoint any third party as his agent on the same terms and conditions including as to security and royalty. In that event, the Respondents are at liberty to bid for the agency of the Court Receiver. -