Tata Capital Ltd. Vs vishnu das s — Arbitration | Madras HC (2025)

Tata Capital Ltd. Vs vishnu das s — Arbitration | Madras HC (2025)

What the court decided

AI extract

Outcome

Per interim order dated 26.06.2025, Mr.R.Suresh, Advocate, was appointed Advocate Commissioner to repossess the equipment/asset from the respondent or wherever available, permitted police aid and break-open of locked premises with proper inventory, with the respondent put on terms (payment of Rs.2,98,500/- arrears within three days of intimation to recover the asset) and the applicant required to initiate arbitration within 90 days failing which the order auto-vacates with unconditional redelivery. In the final order of 14.10.2025, after the respondent was set exparte and the asset proved untraceable, Mr.Athin Roy was substituted as Court Receiver in place of the Advocate Commissioner to seize the subject equipment from the respondent or wherever found, breaking open premises if required with police aid; the application stands disposed of in these terms.

Issue for consideration

Whether, under Section 9 of the Arbitration and Conciliation Act, 1996 (filed under Order XIV Rule 8 of O.S.Rules with Section 9(II)(b),(d) & (e)), an Advocate Commissioner should be appointed to seize and deliver/repossess the SANY SY35U hydraulic mini excavator (serial No.23SY35Y000153) financed under the Loan-cum-Hypothecation Agreement dated 30.12.2022 from the defaulting respondent, wherever found. +1 more

Court's answer

A prima facie case has been made out by the applicant for appointment of an Advocate Commissioner to seize and take possession of the equipment/asset (interim order of 26.06.2025).

Ratio / Principle

To enable the respondent to use the equipment/asset again after repossession, he was put on terms: the Advocate Commissioner to intimate that Rs.2,98,500/- is due, and on the respondent paying within three days of that intimation the applicant shall hand back the equipment/asset (interim order of 26.06.2025).

Key takeaways

The applicant must initiate arbitration in accordance with the arbitration clause in the Loan-cum-Hypothecation Agreement within 90 days; if it fails to do so, the Court's order stands automatically vacated and the re-possessed equipment/asset is redelivered to the respondent unconditionally.ratio¶42
The Court concluded that the respondent is attempting to secrete (conceal) the equipment, which is why the respondent is neither appearing before the Court nor is the equipment traceable.ratio¶52

Detailed headnote1 paragraphs

Madras High Court (N. Anand Venkatesh, J.) | Arbitration Application No.814 of 2025 | disposed 14.10.2025. Filed under Order XIV Rule 8 of O.S.Rules with Section 9(II)(b),(d) & (e) of the Arbitration Act, 1996 / Section 9 of the Arbitration and Conciliation Act, 1996, NBFC applicant Tata Capital Limited sought appointment of an Advocate Commissioner to seize and repossess a SANY SY35U hydraulic mini excavator (serial No.23SY35Y000153) financed under a Loan-cum-Hypothecation Agreement dated 30.12.2022 from defaulting respondent Vishnu Das. S (arrears Rs.2,98,500/-; Statement of Account dues Rs.14,50,375/-; loan recalled 24.05.2024). Interim order of 26.06.2025 found a prima facie case and appointed R.Suresh, Advocate, as Advocate Commissioner with police-aid and break-open powers, conditioning the respondent's recovery of the asset on payment of the arrears within three days of intimation and requiring initiation of arbitration within 90 days, failing which the order auto-vacates and the asset is redelivered unconditionally. Notice served, respondent set exparte 31.07.2025; the Commissioner could not trace the equipment; the Court concluded the respondent was concealing it and substituted Athin Roy as Court Receiver to seize the equipment from the respondent or wherever found, breaking open premises if required with police aid.

Arbitration Application No.814 of 2025

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.10.2025

CORAM

THE HONOURABLE Mr. JUSTICE N. ANAND VENKATESH

Arbitration Application No.814 of 2025

Tata Capital Limited By its Associate Legal Remedial R.Kamalakkannan Having its office at I Floor, Centennial Square 6A, Dr.Ambedkar Salai Kodambakkam Chennai – 600 024.

.... Applicant

Vs

Vishnu Das. S Achappana, Vayalil Veedu Janakeeyam Nagar, Pattathanam Kollam – 691 021. ..... Respondent

Prayer : Application filed under Order XIV Rule 8 of O.S.Rules read with Section 9(II)(b),(d) & (e) of Arbitration Act, 1996, praying to pass an order appointing an Advocate Commissioner to seize and deliver the asset SANY SY35U HYDRAULIC MINI EXCAVATOR powered by YANMAR water cooled Diesel Engine developing netpower of 28HP @ 2200 RPM (serial No.23SY35Y000153) EXCAVATOR, SANY HEAVY INDUSTRY INDIA

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PVT LTD – CEQ SANY SY35U situated at Achappana Vayalil Veedu Janakeeyam Nagar, Pattathanam, Kollam, Kerala – 691 021 or wherever it is found morefully described hereunder with police aid or break open the premises from wherever found and handover the same to the applicant.

For Applicant : Mr.N.K.Vanan

For Respondent : Mr.R.R.Suresh Advocate Commissioner Hence, respondent set exparte by this Court by order dated 31.07.2025.

ORDER

This application has been filed under Section 9 of the Arbitration and Conciliation Act, 1996 for appointment of an Advocate Commissioner to re-

possess the equipment/asset from the respondent, wherever it is available.

When the application came up for hearing on 26.06.2025, this Court passed the following order :

“ThisThis application has been filed under Section 9 of the Arbitration and Conciliation Act, 1996, seeking for appointment of an Advocate Commissioner to seize and take possession of the equipment/asset morefully described in the schedule to the Judges Summons from the respondent or wherever it is available.

2. The applicant is a Non Banking Financial Institution. The

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Arbitration Application No.814 of 2025

applicant has lent money to the respondent under the Loan cum Hypothecation Agreement, dated 30.12.2022. The respondent had availed loan from the applicant for the purchase of equipment/asset morefully described in the schedule to the Judges Summons.

3. The respondent is a defaulter in the repayment of the loan to the applicant. As on date, the respondent is in arrears of three (3) installments, which works out to Rs.2,98,500/-. The applicant has also recalled the loan granted to the respondent through their loan recall notice dated 24.05.2024. As seen from the Statement of Account, a sum of Rs.14,50,375/- is due and payable by the respondent to the applicant which includes future installments, arrears of installments, penal interest and other charges payable as per the terms and conditions of the contract. The applicant is empowered to repossess the equipment/asset from the respondent, as per the terms of the said loan agreement, in case, he commits default in the repayment of the loan. The applicant claims that they are having difficulty in repossessing the equipment/asset on their own. Only under those circumstances, they have filed this application seeking for appointment of an Advocate Commissioner to repossess the equipment/asset from the respondent or wherever available. The Loancum-Hypothecation Agreement, dated 30.12.2022 contains an arbitration clause. The applicant has expressed its willingness to go for arbitration in accordance with the arbitration clause.

4.This Court is of the considered view that a prima facie case has been made out by the applicant for appointment of an Advocate Commissioner. Once the equipment/asset is repossessed by the Advocate

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Commissioner, to enable the respondent to use the equipment/asset once again, he must be put on terms for getting back the equipment/asset from the applicant after re-possession. In order to strike a balance, the following order is passed by this Court:

a) Mr.R.Suresh, Advocate, having office at No.341, New Additional Law Chamber, High Court Building, Chennai – 600 114, (Mobile No.9941005786) is appointed as the Advocate Commissioner to re-posses the equipment/asset morefully described in the schedule to the Judges Summons from the respondent or wherever it is available;

b)The Advocate Commissioner is permitted to obtain the police aid whenever required and he is also permitted to break open the premises in case the equipment/asset is kept in a locked premises in the presence of the police after taking proper inventory.

c) On repossession of the subject equipment/asset, the Advocate Commissioner shall send a Communication to the respondent intimating that a sum of Rs.2,98,500/- is due and payable by the respondent to the applicant in respect of the aforesaid loan agreement.

d) On receipt of such intimation, the respondent shall pay the aforesaid amount within a period of three days from the date of receipt of the communication from the Advocate Commissioner and on payment of such sum, the applicant shall hand over the equipment/asset back to the respondent and the Advocate Commissioner shall co-operate with the applicant for the same.

e)The applicant shall initiate arbitration in accordance with the arbitration agreement contained in the contract within a period of 90 days from the date of receipt of a copy of this order. In case, the applicant fails to initiate arbitration within the stipulated time, the order passed by this

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Arbitration Application No.814 of 2025

Court today shall stand automatically vacated and the re-possessed equipment/asset shall also be redelivered back to the respondent by the applicant unconditionally;

f) The Advocate Commissioner shall be paid an initial remuneration of Rs.25,000/- by the applicant, within a period of one week from the date of receipt of a copy of this order. All the boarding, lodging and travelling expenses for the Advocate Commissioner shall be borne by the applicant.

5. Notice to the respondent, returnable by 31.07.2025. Private Notice is also permitted.

Post the matter on 31.07.2025. ”

Pursuant to the above order, notice was served on the respondent. Since the respondent remained unrepresented, the respondent was set exparte by this Court by an order dated 31.07.2025.

When the matter was taken up for hearing today, it was brought to the notice of the Court that the Advocate Commissioner was not able to trace the equipment/asset till date.

In view of the above, it is quite apparent that the respondent is

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attempting to secret the equipment and that is the reason why the respondent is neither appearing before the Court nor the equipment is able to be traced till date.

In the light of the above discussion, this Court is inclined to substitute

Mr.Athin Roy as Court Receiver, in the place of the Advocate Commissioner, who can seize the subject equipment from the respondent or wherever it is

found, and by breaking open the premises, if required, with the police aid.

This application stands disposed of in the above terms.

14-10-2025

ds

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N. ANAND VENKATESH., J

ds

Arbitration Application No.814 of 2025

14.10.2025

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