Tata Capital Financial Services Limited v. Ganguram Mithai Walla And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 275 OF 2017 Tata Capital Financial Services Ltd.

...

Petitioner

Versus

Ganguram Mithai Walla & Anr.

...

Respondents Mr. Nikhil Mehta instructed by KMC Legal Venture for the Petitioner. None for the Respondents.

CORAM : S.J. KATHAWALLA, J.

DATED : 18 th JANUARY, 2018 P.C.:

1.

The Petition is filed by the Petitioner under section 9 of the Arbitration and Conciliation Act, 1996 seeking reliefs as prayed against the Respondents. The Petition is served on the Respondents and an Affidavit proving service has been placed on record. The Petition is today taken up for final hearing. However, none appear for the Respondents.

2. It is submitted on behalf of the Petitioner that by a Loan Agreement dated 30.01.2016 bearing account no. 5707843 ("said Agreement") executed between the Petitioner as the Lender, the Respondent No.1 as the Borrower and Respondent No.2 as the Co-Borrower, the Petitioner granted a loan of Rs.10,00,000/- (Rupees Ten Lacs Only) to the Respondents for expansion of their business.

3.

It is submitted that as per the said Agreement, the aforesaid Loan amount

2 / 4 ARBP-275-2017.sxw was repayable by the Respondents to the Petitioner with interest @ 20% p.a.

4. It is further submitted that the Respondents have defaulted in repayment of the said loan and thus the Petitioner through its Advocates issued a Notice dated 17.12.2016 and recalled the entire loan as per the terms of the said Agreement. It is also submitted that vide the Notice dated 17.12.2016 , the Petitioner invoked the arbitration clause in the agreement. 5.

It is also submitted that as on 24.01.2017 a sum of Rs.9,69,872/- (Rupees Nine Lacs Sixty Nine Thousand Eight Hundred and Seventy Two Only) is outstanding and payable by the Respondents to the Petitioner with further interest @ of 20% p.a. till payment and/or realization as per the Particulars of Claim annexed and marked as "Exhibit E" to the Petition.

6.

In the present Petition, the Petitioner is interalia seeking an injunction against the Respondents from creating any third party rights in respect of the properties described in Exhibit C to the Petition, directions to the Respondents to disclose on oath the details of their personal moveable and immoveable unencumbered and encumbered assets/ properties and to furnish solvent security to this Court.

7.

The Respondents have not filed their Affidavit in Reply and are also not present before the Court. In absence of any defense or contest by the

3 / 4 ARBP-275-2017.sxw Respondents, the averments contained in the Petition have remained uncontroverted. I see no reason why the submissions made on behalf of the Petitioner in the Petition should not be accepted.

8. Clause 5 of the Loan Agreement provides for the events of default; Clause 6 for the rights and remedies available to the Petitioner. Clause 11 provides for Arbitration. The events of default having taken place in terms of the said Agreement, the Petitioner became entitled to recall and thus by Notice dated 17.12.2016, recalled the entire loan and also invoked the arbitration clause in the said Agreement. There is no reply to the Notice dated 17.12.2016. 9.

As the Respondents have defaulted in the repayment of the outstanding dues, it is just and necessary to safeguard the interest of the Petitioner. The claim of the Petitioner is over Rs. 9 Lakhs and unless adequately protected, the Petitioner may suffer irreparable harm and injury. Balance of convenience also warrants grant of reliefs.

10. Hence, I pass the following order;

(i) Pending the hearing and final disposal of the arbitration proceedings the Respondents, their agent/s, and/or any person/s claiming through or under them are restrained by an order of injunction from in any manner selling, transferring, disposing of, and/or alienating, encumbering or

4 / 4 ARBP-275-2017.sxw parting with possession or creating any third party rights in respect of the properties described in "Exhibit C".

(ii) The Respondents to file an Affidavit of Disclosure of Assets before this Court within a period of two weeks from the date of the receipt of this order. (iii) A copy of this order shall be forthwith served on the Respondents by hand delivery and also by Speed Post A.D.

(iv) The Arbitration Petition is accordingly disposed off. ( S.J.KATHAWALLA, J. )