Tata Capital Financial Services Limited v. Jitendra Kumar Gadanayak And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.445 OF 2018 Tata Capital Financial Services Ltd ...

Petitioner

Versus

Jitendra Kumar Gadanayak & Anr.

...

Respondents Mr. Nikhil Mehta i/b. KMC Legal Venture for the Petitioner. None for Respondents.

CORAM: S.J. KATHAWALLA, J.

DATED: 10 TH AUGUST 2018 P.C 1.

The above 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 Respondent No:1 and an Affidavit proving service has been tendered. The Petition stands dismissed as against the Respondent No:2. The Petition is today taken up for final hearing. However, none appear for the Respondent No:1.

2.

By a Loan cum Hypothecation Agreement ("said Agreement") dated 31.08.2016, the Petitioner provided a loan of Rs.20,91,560/-(Rupees Twenty Lacs Ninety One Thousand Five Hundred and Sixty only) to the Respondents for purchase of asset being JCB3DX Engine No: H001193 and bearing Chassis No: HAR3DXSSC01898498 and bearing Registration No: OD-19-H-2990 ("said

2 / 5 Asset") more particularly described in paragraph 2 of the Petition and on the terms described in the Loan-cum-Hypothecation Agreement dated 31.08.2016. Under the said Agreement, the said Asset was hypothecated with the Petitioner by the Respondents, as security for repayment of the Loan amount. 3.

The Loan amount of Rs. 20,91,560/- (Rupees Twenty Lacs Ninety One Thousand Five Hundred and Sixty only) was repayable by the Respondents to the Petitioner with interest @ 11.98% per annum in 45 monthly installments, the 1st installment to the 42nd installment of Rs 60,000/- and the 43rd installment to the 45th installment of Rs.43,000/- each.

4.

Clause 17 of the Loan-cum-Hypothecation Agreement providesfor the events of default; Clause 18 for the consequences of default;Clause 18.1 provides for Repossession of Asset. Clause 23 provides for Arbitration. 5.

The Respondents failed to pay to the Petitioner a sum of Rs. 18,23,813.46/- (Rupees Eighteen Lacs Twenty Three Thousand Eight Hundred and Thirteen and Paise Forty Six only) as on 08.03.2018. In view of this default the Petitioner became entitled to recall and have recalled the entire Loan as agreed in clause 18 of the Loan cum-Hypothecation Agreement. No reply is received from the Respondents to the Loan Recall Notice dated 17.10.2017. The Petitioner has yet not invoked the arbitration proceedings and is desirous of doing so and in the meantime has approached this Court for interim relief. 6.

In the present Petition, the Petitioner has sought appointment of the Court Receiver, High Court Bombay as the Receiver of the hypothecated Asset, more particularly described in paragraph 2 of the Petition. The Respondent No:1 has not

3 / 5 filed his Affidavit in Reply and is also not present before the Court. In absence of any defence or contest by the Respondent No:1, the averments contained in the Petition have remained uncontroverted. I see no reason why the statements/ submissions made by the Petitioner in the Petition should not be accepted. As the Respondents have defaulted in the repayment of the outstanding dues, it is just and necessary to safeguard the interest of the Petitioner by appointing the Court Receiver as Receiver of the hypothecated asset. The appointment of the Receiver is necessary in order to ensure that the said Asset is not wasted or alienated, thereby defeating the rights of the Petitioner. Further interim injunction in terms of prayer clause (c) also needs to be granted to protect the rights of the Petitioner. The claim of the Petitioner is over Rs. 18 lakhs and unless adequately protected, the Petitioner may suffer irreparable harm and injury. Balance of convenience also warrants the grant of relief. Section 9 empowers the Court to pass an interim measure of protection.

Hence, the following order is passed:

a) Pending the hearing and final disposal of the arbitration proceedings the Court Receiver is appointed as Receiver in respect of the Hypothecated Asset, more particularly described in paragraph 2 to the Petition viz: being JCB3DXEngine No: H001193 and bearing Chassis No: HAR3DXSSC01898498 and bearing Registration No: OD-19-H-2990 with direction to take forcible physical possession of the said Asset with police assistance, if required, and without any prior notice to the Respondent No:1;

4 / 5 (b) The Court Receiver shall within a period of two weeks after taking possession, give an option to the Respondent No:1, in writing to act as an agent of the Receiver in respect of the said asset. The Respondent No:1 shall be given two weeks time by the Court Receiver from the date of receipt of the Court Receivers communication/letter to exercise such option. In the event of the Respondent No:1 being desirous of acting as agents of the Receiver, he shall be appointed as agent of the Receiver, subject to deposit of security and payment of royalty. The Receiver shall determine the quantum of security and royalty having regard to the terms and conditions contained in the Loan-cum-Hypothecation Agreement (Exhibit A to the Petition);

(c ) In the event that the Respondent No:1 does not communicate his willingness to the Receiver to act as agent within a period of two weeks from the date of receipt of the communication from the Court Receiver, it would be open to the Petitioner to apply to the Court for further orders including sale of the said Asset by private treaty;

(d) There shall also be an interim injunction restraining the Respondent No:1 from disposing of, alienating, encumbering, parting with possession or creating any third party rights in respect of the said Asset described in paragraph 2 of the Petition.

7.

A copy of this order shall be forthwith served on the Respondent No:1 by hand delivery and also by Speed Post A.D.

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