Cholamandalam Investment And Finance Co Ltd v. M/S V Tech Rep By Its Prop Mr Dineshbhai Jerambhai Khunt

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 01-09-2025

CORAM

THE HONOURABLE MR JUSTICE N. ANAND VENKATESH

1. Cholamandalam Investment And Finance Co Ltd Chola Crest, C 54 and 55, Super B-4, Thiru Vi Ka Industrial Estate, Guindy, Chennai Applicant(s) Vs

1. M/s V Tech Rep by its Prop Mr Dineshbhai Jerambhai Khunt S.R.No.263, Plot No.25, Street, No.2, Shed No.2/D, Natraz Industrial Area, Opp Narayan Way Bridge, Gondal Road, Kothariya Rajkot, Gujarat 360 002.

Respondent(s) PRAYER To appoint an Advocate Commissioner to seize and deliver the equipment to applicant which is more fully described in the schedule to the Judges Summons which is lying in the custody of respondent or respondents men, agents, servants from respondent premises or wherever found with police aid and break open of premises if necessary.

For Applicant(s):

Mr.D.Pradeep Kumar

ORDER

This application has been filed for appointment of Advocate Commissioner to seize and deliver the equipment to the applicant lying in the custody of the respondent, their men, agents, servants etc., with police aid and break open premises if necessary. 2.

Heard the learned counsel for the Applicant and carefully perused the materials available on record.

3.

The specific case of the applicant is that the respondent has not paid seven instalments and notice was issued to the respondent in this regard on 13.02.2025. Even thereafter, one instalment was paid. The applicant has also given an undertaking that they will initiate arbitration proceedings. 4.

In the considered view of this Court, to invoke Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act"), there must be a manifest intention to arbitrate. The law on this issue was spelt out by the Apex Court in [Firm Ashok

Traders and another Vs.Gurumukh Das Saluja and others] reported in 2004 3 SCC 155. The law was again reiterated by this Court in [M/s.Cholamandalam Investment and Finance company Ltd. Vs.Harkhabhai Amarshibhai Vaghadiya] in Arb. Appln. No.40 etc., of 2022.

5.

It is true that trigger notice under Section 21 of the Act is not imperative. However, there must be a manifest intention to arbitrate the moment dues become payable. In this case, totally seven instalments have not been paid and the notice has been issued to the respondent as early as in February 2025. In view of the same, this Court finds that there is lack of intention to arbitrate. 6.

In the light of the above discussion, it is made clear that the right of the applicant is left open to agitate the same before the Arbitral Tribunal and similar prayer can be made under Section 17(1) (ii) (d) of the Act. If such a course is adopted by the applicant, it is left open to the Arbitral Tribunal to decide the same on its own merits and in accordance with law.

7.

This Application is disposed of in the above terms. 01-09-2025 rka Index:Yes/No Speaking/Non-speaking order Internet:Yes

To 1.M/s V Tech Rep by its Prop Mr Dineshbhai Jerambhai Khunt S.R.No.263, Plot No.25, Street, No.2, Shed No.2/D, Natraz Industrial Area, Opp Narayan Way Bridge, Gondal Rad, Kothariya Rajkot, Gujarat 360 002.

N.ANAND VENKATESH J.

rka 01-09-2025