M/S Icici Bank Limited v. Mayank Gupta

$~51 *

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO 238/2018 M/S ICICI BANK LIMITED ..... Appellant Through: Mr. Punit K. Bhalla, Advocate.

Versus

MAYANK GUPTA ..... Respondent Through:

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

O R D E R

% 16.05.2018 CM No. 20495/2018 (for exemption) 1.

Allowed, subject to all just exceptions.

2.

The application stands disposed-off.

FAO 238/2018 & CM No. 20496/2018 3.

This appeal impugns an order dated 20.01.2018 of the learned Additional District Judge, declining to consider appointment of a Receiver for the suit property under Order 40 Rule 1 CPC. The appellant had given a loan of Rs.6,05,460.00 to the respondent towards financing of a motor vehicle, namely, SUNNY/XV bearing registration no. UP-14BX-4921. There was a default in re-payment of the EMIs. The notice to the respondent evinced no response. Hence, the loan was recalled. For the claimed outstanding amount of Rs.4,96,026.37, a suit for recovery, alongwith the interest thereon, was filed.

4.

The learned counsel for the appellant relies upon the judgment of this Court dated 05.01.2016 in FAO No.7/2016 titled as ICICI Bank Ltd. vs.

Updesh Nagar, wherein the impugned ex-parte order declining the appointment of a Receiver was set aside and looking at the facts of the case and to prevent prejudice being caused to the applicant banker, the Court then appointed a Receiver ex-parte.

The Court had referred to the judgment of the Supreme Court in A. Venkatasubbiah Naidu vs. S. Chellappan and Ors., 2000 7 SCC 695, which had analysed the objective behind Order 43 Rule 1 CPC and concluded that:- ".....It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law........the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy...." The Court also referred to the judgment of the Full Bench of the Bombay High Court in State Bank of India vs. Trade Aid Paper and Allied Products (India) Pvt. Ltd. & Ors.

AIR 1995 Bom 26, exhorting Courts to adopt a practical approach while exercising the power of appointment of a Receiver apropos banks and financial institutions, having regard to the fact that they deal in public funds. The said judgment reads as under:- "...Indeed, it is the duty and function of the Court entertaining the suits instituted by Banks and financial institutions to ensure that efforts are made to dispose of the suits as early as possible and even during the pendency of the suits, ensure that not only the properties are protected but the defendant is made to repay the amount, if desirous of enjoying the benefits secured by obtaining the loan.

The powers of the Court under Order 40, Rule 1 of the Code of Civil Procedure are to be exercised to advance cause of justice and what is "just and convenient‟ depends upon the nature of the claim and the surrounding circumstances.

down 50 years before when the suits by Banks and financial institutions were a novelty. The economic liberalization and the policy of the Government to grant loans for various activities have increased the number of suits by Banks and financial institutions and in this Court every year more than 2,000 suits are instituted. It would not be difficult to imagine how much public money is involved in these suits and how long the Nationalised Banks and financial institutions are deprived of their dues. The Court should be conscious of these facts and should be more pragmatic in exercising powers under Order 40, Rule 1 of the Code of Civil Procedure." 5.

In view of the above, to secure the interests of the appellant's suit property i.e. the vehicle, namely, SUNNY/XV bearing registration no. UP14BX-4921, the Court deems it appropriate to appoint a Receiver. Consequently, Mr. Sudhir Vashisht, Representative of the appellant is appointed as a Receiver. He shall be authorized to:- i) take possession of the vehicle but while doing so he will ensure that due courtesies are extended to the respondent/defendant; ii) keep in mind the time and the place where the subject vehicle is taken possession of. If, at the time of taking possession, the respondent/defendant were to pay the sums, which are due and payable then, the Receiver, will issue a receipt in that behalf to the respondent/defendant and release the vehicle on superdari to the latter;

iii) in case the police assistance is required, the Receiver will approach the Station House Officer manning the nearest Police Station, who, in such eventuality, shall render due assistance to enable compliance in the matter;

iv) file his report with the Trial Court within ten days of taking possession of the subject vehicle.

6.

In case the Receiver is successful in obtaining the possession of the subject vehicle before the next date of hearing, the Trial Court will pass appropriate orders on the next date of hearing. 7.

However, in case the subject vehicle is not traced till the next date of hearing, the Trial Court will, accordingly, extend the period for locating the vehicle and, in that behalf, pass appropriate orders in the pending application.

8.

The appeal is allowed and disposed off in the above terms. The pending application also stands disposed off. 9.

A copy of this order be given dasti to the learned counsel for the appellant under the signatures of the Court Master. NAJMI WAZIRI, J.

MAY 16, 2018 sb