Hdfc Bank Ltd v. Kalpesh Prakash Mhatre

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 1355 OF 2014 H. D. F. C. BANK LIMITED .....Petitioner

Versus

Kalpesh Prakash Mhatre ....Respondent Mr. Sandesh Godse, i/by M/s.Vivek Patil & Associates., for Petitioner. None for Respondent.

CORAM: S.J.KATHAWALLA, J.

DATE: 07th January, 2015 P . C.

1. This Petition is filed by the Petitioner under Section 9 of the Arbitration and Conciliation Act, 1996 seeking reliefs as prayed against the Respondent. The Arbitration Petition is served on the Respondent and an affidavit proving service is on record. The Petition is today taken up for final hearing. None appear for the Respondents.

2. By an Agreement dated 07th February, 2012 the Petitioner had provided a loan of Rs. 11,45,393/ to the Respondent No. 1 for purchase of vehicle being Model No. CHEVROLET CAPTIVA BSIII and having Engine No. Z2051252950K, chassis No. KL1CF26RM8298644 and Registration No. MH-04 DY-3945 more particularly described in Exhibit - D to the

Petition ("Said Vehicle"). By a deed of Hypothecation dated 07.02.2012 the said vehicle was hypothecated with the petitioner by the Respondent.

3.

The Loan amount of Rs. 11,45,393/- was repayable by the Respondent to the petitioner with interest @ 14% per annum in monthly installments commencing from 07.03.2012 and ending on 07.02.2016. Therefore, the aggregate amount payable under the loan agreement was Rs. 15,02,304/-.

4.

Clause 11 of the agreement provides for the events of default; and Clause 25 provides for arbitration. There has been a default on the part of the Respondent. In view thereof the Respondent became liable to pay to the Petitioner a sum of Rs. 7,82,680.74. The Petitioner therefore invoked the arbitration clause in the Agreement dated 07.02.2012.

5.

In the present Petition, the Petitioner has sought appointment of the Court Receiver, High Court Bombay as Receiver of the said vehicle more particularly described in Exhibit - D to the Petition. In absence of any defense or contest by the Respondent, the averments contained in Petition have remained uncontroverted. I see no reason why the statements/submissions made by the Petitioner in the Petition should not be accepted. Since Respondent has defaulted

in repayment of the outstanding dues, it is necessary to safeguard the interest of the Petitioner by appointing the Court Receiver as Receiver of the said vehicle. The appointment of the Receiver is necessary in order to ensure that the said vehicle is not wasted or alienated, thereby defeating the rights of the Petitioner. Section 9 empowers the Court to pass an interim measure of protection. Hence the following order: (i) Pending the hearing and final disposal of the arbitration proceedings, the Court Receiver is appointed as Receiver in respect of said vehicle namely Model No. CHEVROLET CAPTIVA BSIII and having Engine No. Z2051252950K, chassis No. KL1CF26RM8298644 and Registration No. MH-04 DY-3945 more particularly described in Exhibit - D to the Petition, with direction to take forcible possession of the same with police assistance, if required, and without any prior notice to the Respondent;

(ii) The Court Receiver shall within a period of two weeks after taking possession, give an option to the Respondent in writing to act as agent of the Receiver in respect of the said vehicle described in Exhibit-D to the Petition. The respondent shall be given two weeks time by the Court Receiver from the date of receipt of the Court Receiver's communication/letter to exercise such option. In the event of the respondent being desirous of acting as agent of the

Receiver, they shall be appointed as agent of the Receiver, subject to security and royalty. The Receiver shall determine the quantum of security and royalty having regard to the terms and conditions contained in the Agreement For Vehicle Loan. (Exhibit A to the Petition);

(iii) In the event that the Respondent fails to communicate his willingness to the Receiver to act as agent of the Court Receiver 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 vehicle more particularly described in Exhibit-D to the Petition by private treaty;

(iv) There shall be an interim injunction restraining the Respondent from alienating, encumbering, parting with possession or creating any third party rights in respect of the said vehicle namely Model No. CHEVROLET CAPTIVA BSIII and having Engine No. Z2051252950K, chassis No. KL1CF26RM8298644 and Registration No. MH-04 DY-3945 more particularly described in Exhibit D to the Petition.

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