Tata Capital Housing Finance Limited v. Niraj Bhargava And ANR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.1638 OF 2015 Tata Capital Housing Finance Ltd.

...

Petitioner

Versus

Niraj Bhargava & Anr.

...

Respondents Mr. Nilesh Gala i/b. Law Square for the Petitioner. None for Respondents.

CORAM

: S.J. KATHAWALLA, J.

DATED : 18 th March, 2016 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 record. However, none appear for the Respondents. The Petition is today taken up for final hearing.

2.

It is submitted on behalf of the Petitioner that by a Sanction Letters dated 09.03.2013, the Petitioner had granted a loan of Rs.58,70,000/- (Rupees Fifty Eight lakhs Seventy Thousand Only) in favour of the Respondents against the property being Plot No.11, Pachunkar Colony, Behind Collector Banglow, Dewas-455001 more

particularly described in "Exhibit D" to the Petition ("said mortgaged property"). The said Loan amount was repayable by the Respondents to the Petitioner [i.e. Rs.29,40,000/- under the account no. 9162496 to be repaid in 180 monthly instalments of Rs.33,416/- each and Rs.29,30,000/- under the account no.9162713 to be repaid in 180 monthly instalments of Rs.37,072/-] each. 3.

Loan Agreement dated 29.03.2013 & Loan Agreement dated 01.04.2013 ("said Agreements"), were executed between the Petitioner as the Lender and the Respondents as the Borrowers. The Respondents have also created a mortgage of the property described in "Exhibit D" in favour of the Petitioner by depositing the title deeds and executing a Memorandum Recording creation of Mortgage by Deposit of Title Deeds dated 29.03.2013 &1.4.2013 in favour of the Petitioner. 4.

It is submitted on behalf of the Petitioner that the Respondents defaulted in the timely repayment of the said loan and thus the Petitioner through its Advocates' Notices dated 27.03.2014, recalled the entire loan as per the terms of the said Agreement. Also, it is submitted that vide Notices dated 27.03.2014, the Petitioner invoked the arbitration clause in the said Agreement. 5.

It is also submitted that as on 17.08.2015 a sum of Rs.61,22,040/- (Rupees Sixty One Lakhs Twenty Two Thousand Fourty Only) is outstanding and payable by the Respondents to the Petitioner alongwith interest thereon @ 11.25% per annum (variable) in respect of Loan Account No.9162496 and 13.25% per annum (variable) in respect of Loan Account No.9162713 and additional interest @ 2% per month on the

overdue amount for the defaulted period till payment/ realisation as well as other expenses, costs, fees, charges, etc as per the Particulars of Claim annexed and marked "Exhibit F" 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 mortgaged property and directions to the Respondents to disclose on oath the details of their personal moveable and immoveable un-encumbered and encumbered assets/ properties and appointment of the Court Receiver, High Court Bombay as the Receiver of the mortgaged property.

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 Respondents, the averments contained in the Petition have remained uncontroverted. I see no reasons why the submissions made on behalf of the Petitioner should not be accepted. 8.

Clause 7.1 and Clause 11.2 of the said Agreements provide for the events of default; Clause 7.2 amd Clause 11.3 provide for notice on happening of events of defaults and Clause 12.10 and Clause 13 provide for Arbitration. The events of default having taken place in terms of the said Agreement, the Petitioner became entitled to recall the loan and thus by Notices dated 27.03.2014 recalled the said loan and also invoked the Arbitration clause in the said Agreement. There is no reply to the Notices dated 27.03.2014.

9.

As the Respondents have defaulted in repayment of the outstanding dues, it

is just and necessary to safeguard the interests of the Petitioner. The claim of the Petitioner is over Rs.61.22 Lakhs and more, unless adequately protected, the Petitioner may suffer irreparable harm and injury. Balance of convenience also warrants the grant of reliefs.

10.

Hence, I pass the following Order;

(i) The Court Receiver, High Court, Bombay is appointed as Receiver in respect of the said mortgaged property described in "Exhibit D" to the Petition, with direction to take symbolic possession of the said mortgaged property and appoint the Respondents as their agents in respect of the said mortgaged property on usual terms, conditions and payment of royalty as may be fixed by the Court Receiver and on furnishing security having regard to the terms and conditions of the Loan Agreement (Exhibit B to the Petition). (ii) In the event of the Respondents failing to accept or refusing to accept the agency within two weeks from the date of such offer by the Court Receiver, the Court Receiver shall take physical possession of the said mortgaged property with the help of police assistance if required and without any further notice to the Respondents. Thereafter, it would be open to the Petitioner to apply to the court for further orders including sale of the said mortgaged property by private treaty. (iii) The Respondents shall disclose on oath the details of their personal

moveable and immoveable un-encumbered and encumbered assets/ properties. (iv)Until the Court Receiver, High Court, Bombay takes possession of the said mortgaged property, 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 parting with possession of, or creating any right in respect of the said mortgaged property described in "Exhibit D".

(v) A copy of this order shall be forthwith served on the Respondents by hand delivery and also by Speed Post A.D.

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