Dismissed

L and T Finance Ltd. v. Ashok Kumar B. Biswal and Anr.

Bombay HC25 Jun 2012ARBP/200/2012

Case brief

AI extract

What is this about?

In an unopposed arbitration petition under Section 9 of the Arbitration and Conciliation Act, 1996, the High Court of Bombay appointed a Court Receiver for a hypothecated truck to safeguard the petitioner's dues and granted directions for its possession and management.

What did the court decide?

Appointment of Court Receiver to take forcible possession of the hypothecated truck; option given to respondents to act as agents within two weeks; interim injunction against alienation granted.

L and T Finance Ltd. Vs Ashok Kumar B. Biswal and Anr. — Specific Performance | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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ARBITRATION PETITION NO. 200 OF 2012 L & T Finance Limited … Petitioner

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Versus Ashok Kumar Biswal & Anr. ...Respondents

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Pramod Bhosle a/w Kavita Shinde i/b Ms. Disha Karambar for the Petitioner. None for the Respondent.

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…. CORAM : S. J. KATHAWALLA, J. DATE : 25TH JUNE, 2012

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P.C.:

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This Petition is filed by the Petitioner under section 9 of the Arbitration and Conciliation Act, 1996 seeking reliefs as prayed against the Respondent. By an Order dated 06.03.2012, an ad-interim order was passed in the above Petition by the Court. The said order alongwith the Petition is served upon the Respondent and an Affidavit proving

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service dated 07.04.2012 is on record. The Petition is today taken up for final hearing. However, none appear for the Respondents.

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The Petitioner had provided a loan of Rs. 12,50,000/- in two sets totaling to Rs.25,00,000/- to the first Respondent under a Loan-cumHypothecation Agreement entered into on 03.06.2009. The loan was repayable with interest at the rate of @ 8.61% per annum in 35 monthly equated installments, of which Installments of Rs. 44,940/- in two sets totaling to Rs.89,880/-. The second Respondent has guaranteed the due repayment of the loan. Clause 12 of the agreement provides for the events of default; Clause 13 of the consequences of default and Clause 14 provides for the rights of the Petitioner on default including repossession of the asset. Clause 17 provides for arbitration. There has been default on the part of the Respondents. The Respondents are liable to pay to the Petitioner a sum of Rs.11,18,753/-. The Petitioner has invoked the provision for arbitration.

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In the present Petition, the Petitioner has sought appointment of the Court Receiver as Receiver of the hypothecated Truck, more particularly described in Exhibit “G” to the Petition. In absence of any defence or contest by the Respondents, the averments contained in the

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Petition would have to be accepted. There has been a default in the payment of the outstanding dues. It would, therefore, be necessary to safeguard the interest of the Petitioner by appointing the Court Receiver as Receiver of the hypothecated Truck. The appointment of the Receiver is necessary in order to ensure that the Truck 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:-

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(i) Pending the hearing and final disposal of the arbitration proceedings, the Court Receiver is appointed as Receiver in respect of the Truck, more particularly described in Exhibit “G” to the Petition, with direction to take forcible possession of the said Truck with police assistance, if required, & without any prior notice to the Respondents;

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(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 agents of Receiver in respect of the said Truck. The Respondents shall be given two weeks time by the Court Receiver from the date of receipt of the Court

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Receiver’s communication/letter to exercise such option. In the event of the Respondent/s being desirous of acting as agents of the Receiver, they shall be appointed as agents 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 loan – cum – hypothecation agreement (Exhibit –“A” to the Petition);

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(iii) In the event that the Respondents do not communicate their willingness to the Receiver to act as agents 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 for sale of the Truck by private treaty.

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(iv) Until the Receiver takes possession, there shall be an interim injunction restraining the Respondents from alienating, encumbering, parting with possession or

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creating any third party rights in respect of the Truck described in Exhibit “G” to the Petition.

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The arbitration petition is accordingly, disposed of.

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All parties, including the Court Receiver to act on a copy of this order duly authenticated by the Associate of this Court.

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{S. J. KATHAWALLA, J.}

L and T Finance Ltd. v. Ashok Kumar B. Biswal and Anr.

Case brief

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L and T Finance Ltd. v. Ashok Kumar B. Biswal and Anr.

Case brief

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