Tata Capital Financial Services Limited Vs Thiyagarajan T and Jeyanthi Thiyagarajan

Nitin

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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.274 OF 2018

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Tata Capital Financial Services Ltd.

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…Petitioner

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Versus

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Thiyagarajan T & Anr.

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…
Respondents

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

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CORAM : S.J. KATHAWALLA, J. DATED : 3rd May, 2018

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P.C.:

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1. The above Petition is filed by the Petitioner under section 9 of the Arbitration

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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
on record. However, none appear for the Respondents nor reply has been filed. The
Petition is today taken up for final hearing.

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2.It is submitted on behalf of the Petitioner that by virtue of a Sanction Letter
dated 16.2.2015, the Petitioner had sanctioned a loan of Rs.78,00,000/- (Rupees
Seventy Eight Lakhs Only) in favour of the Respondents against mortgage of the
property Re SY No. A2/18-18, Vadasery West Village, Agastheeswaram, Kanyakumari
District more particularly described in “Exhibit D” to the Petition (“said mortgaged
property”). The said Loan amount was repayable by the Respondents to the Petitioner
with interest @ 12.76% p.a (variable) in 180 monthly instalments of Rs.98,740/-each.

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3.A Loan Agreement dated 20.2.2015 (“said Agreement”), was 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” to the Petition
in favour of the Petitioner by depositing the title deeds and executing a Memorandum
Recording creation of Mortgage by Deposit of Title Deeds dated 16.3.2015 in favour of
the Petitioner.

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4.It is submitted on behalf of the Petitioner that the Respondents defaulted in the
timely repayment of the said loan. It is also submitted that as on 27.9.2017 a sum of
Rs.75,55,350/- (Rupees Seventy Five Lakhs Fifty Five Thousand Three Hundred and
Fifty Only) is outstanding and payable by the Respondents to the Petitioner alongwith
interest thereon @ 12.76% (variable) per annum 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. Thus the Petitioner through its Advocates’ Notice
dated 10.6.2017 recalled the entire loan as per the terms of the said Agreement. Also, it
is submitted that vide the said Notice, the Petitioner invoked the arbitration clause in
the said Agreement. There is no reply to the Notice dated 10.6.2017.

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5.Clause 11.2 of the said Agreement provides for the events of default; Clause 11.3
provides for notice on happening of events of defaults and Clause 12.18 provides for
Arbitration.

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6. In the present Petition, the Petitioner is interalia seeking an injunction against the

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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.

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7.The Respondents have neither filed their Reply nor are they 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 reason why the
statements/submissions made on behalf of the Petitioner in the Petition should not be
accepted. Section 9 empowers the court to pass interim measures of protection.

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8.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.75 Lakhs and unless adequately protected, the Petitioner may
suffer irreparable harm and injury. Balance of convenience also warrants the grant of
reliefs. Hence, the following order is passed.

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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

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the Loan Agreement (Exhibit B to the Petition).

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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 forcible possession of the said mortgaged property with the
help of the 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.

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iii. The Respondents shall disclose on oath the details of their moveable and immoveable (un-encumbered and encumbered) assets/ properties.

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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 rights in respect of the said mortgaged
property described in “Exhibit D”.

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1. The Petitioner shall serve a copy of this order on the Respondents by hand delivery and also by Speed Post A. D.

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2. The Arbitration Petition is accordingly, disposed off.

Tata Capital Financial Services Limited v. Thiyagarajan T and Jeyanthi Thiyagarajan

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Tata Capital Financial Services Limited v. Thiyagarajan T and Jeyanthi Thiyagarajan

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