Tata Capital Housing Finance Ltd. v. Krishnappa Lokesh And Another

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.542 OF 2015 Tata Capital Housing Finance Ltd.

...Petitioner

V/s.

Krishnappa Lokesh & Anr.

...Respondents

Ms.Nazneen Kotwal i/b MDP & Partners for the Petitioner. None for the Respondents.

CORAM : R.D. DHANUKA, J.

DATE : 7TH OCTOBER, 2015.

P.C. :- 1.

Learned Counsel appearing for the petitioner tenders affidavit of service and submits that the respondents have refused to accept service. The statement is accepted. The affidavit of service is taken on record.

2.

By this petition filed under section 9 of the Arbitration & Conciliation Act, 1996 the petitioner seeks appointment of the Court Receiver in respect of the property described at Exhibit "E" to the petition and for various other reliefs. The petitioner has sanctioned a home loan in favour of th respondent nos.1 and 2 on 15th May, 2012 for an amount of R.13,20,000/-, repayable in 240 monthly equal installments of Rs.13,401/-. On 29th May, 2012, the respondents executed in favour of the petitioner a Memorandum Recording Past Transactions of Creation of Mortgage by Deposit of Title Deeds of the property described in Exhibit "E" to the petition. 1/4

3.

Since the respondents failed to pay total 21 equated installments, on 24th August, 2013, the petitioner called upon the respondents to repay a sum of Rs.13,81,979/- along with further interest thereon. The respondents neither repaid any amount nor responded to the said notice.

4.

According to the petitioner as on 19th January, 2015, the respondents are liable to pay to the petitioner a sum of Rs,16,54,462/- with further interest thereon.

5.

Clauses 7.1 provides for events of default. Clause 12.11 provides for arbitration.

6.

A perusal of record prima-facie indicates that the respondents have committed default in making repayment of the loan amount and there was no response to the notice of demand. The petitioner has good chances of succeeding in the arbitration proceedings. The petitioner apprehends that the respondents may create third party rights in respect of the mortgaged property and thus has prayed for appointment of the Court Receiver and injunction. In my view, the petitioner has made out a prima-facie case for appointment of the Court Receiver. Section 9 empowers the Court to pass an interim measure of protection. Hence, the following order:- i) The Court Receiver, High Court, Bombay is appointed as a Receiver in respect of the property described at Exhibit "E" with a direction to the Court Receiver to appoint the respondent Nos.1 and 2 or any one of them as an agent of the Court Receiver on usual terms and conditions and on payment of royalty and on 2/4

furnishing security. If the respondents or any of them who does not accept the agency of the Court Receiver within two weeks from the date of the said offer by the office of the Court Receiver, the Court Receiver shall take forcible possession in respect of the property and if necessary with the assistance of the police and shall submit a report before this Court for further directions. In that event the petitioner would be at liberty for further interim measures.

ii). Till the Court Receiver takes possession of the property described at Exhibit "E" to the petition thereof, interim injunction in terms of prayer clause (b). There shall be interim order in terms of prayer (c). Such affidavit of disclosure shall be filed within four weeks from the date of communication of this order. 7.

Petitioner is directed to approach the office of the Court Receiver for enforcement of this order within 4 weeks from today, failing which interim order to stand vacated without further reference to this Court.

8.

The Arbitration Petition is accordingly disposed of. No order as to costs.

9.

Parties as well as the Court Receiver to act on the authenticated copy of this order.

(R.D. DHANUKA, J.) 3/4

"Certified to be true and correct copy of original signed order." 4/4