Disposed¶51

Tata Capital Ltd. v. Thambi and Associates

Madras HC7 Oct 2025Arb Appln/816/2025

Case brief

AI extract

What is this about?

Section 9 Arbitration and Conciliation Act 1996 interim relief repossession NBFC Tata Capital Limited Thambi and Associates JCB JS140 excavator Advocate Commissioner Court Receiver police aid break open ex parte loan default hypothecation arrears Rs.3,54,890 total dues Rs.6,83,174 remuneration Rs.25,000 loan recall notice 16.10.2024 Loan-cum-Hypothecation Agreement 12.05.2023 arbitration clause trigger notice Madras High Court Arb.Appln.No.816 of 2025 N.Anand Venkatesh 07.10.2025

What did the court decide?

Appointment of Mr.Athin Roy, Legal Officer, Tata Capital Limited, as Court Receiver to seize the equipment from the respondent wherever found, if required with police aid; applicant directed to initiate arbitration (trigger notice already issued). ¶51

Tata Capital Ltd. Vs Thambi and Associates — Arbitration | Madras HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether, under Section 9 of the Arbitration and Conciliation Act, 1996, the applicant (NBFC lender under a Loan-cum-Hypothecation Agreement containing an arbitration clause) is entitled to an order appointing an Advocate Commissioner/Court Receiver to seize and deliver the financed JCB excavator lying with the defaulting respondent, with police aid if required.

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Court's answer

By interim order dated 26.06.2025 the Court held that a prima facie case had been made out by the applicant for appointment of an Advocate Commissioner, appointed Mr.A.Rajadurai as Advocate Commissioner to repossess the scheduled equipment (with police aid and break-open permitted), put the respondent on terms (intimation of Rs.3,54,890/- arrears; return of asset on payment within three days), required arbitration to be initiated within 90 days failing which the order would stand automatically vacated and the asset redelivered unconditionally, and fixed Rs.25,000/- as the Advocate Commissioner's initial remuneration.

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Ratio / Principle

In view of the Advocate Commissioner being unable to trace the equipment and the respondent having been set ex parte, the Court appointed Mr.Athin Roy, Legal Officer, Tata Capital Limited, as Court Receiver to seize the equipment from the respondent wherever it is found, if required with police aid, and directed the applicant to initiate arbitration since the trigger notice had already been issued; the application was disposed of accordingly.

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Detailed headnote1 paragraphs

Arbitration Application No.816 of 2025 (High Court of Judicature at Madras, N.Anand Venkatesh J., 07.10.2025): Tata Capital Limited, a Non Banking Financial Institution, applied under Section 9 of the Arbitration and Conciliation Act, 1996 (prayer citing Order XIV Rule 8 of O.S.Rules read with Section 9(II) (b), (d) & (e) of Arbitration Act, 1996) for appointment of an Advocate Commissioner to seize and deliver a JCB JS140 excavator financed under a Loan-cum-Hypothecation Agreement dated 12.05.2023 from defaulting respondent Thambi and Associates. By interim order dated 26.06.2025 the Court found a prima facie case, appointed Mr.A.Rajadurai as Advocate Commissioner with police aid and break-open powers, put the respondent on terms (intimation of Rs.3,54,890/- arrears; return of the asset on payment within three days), required the applicant to initiate arbitration within 90 days failing which the order would stand automatically vacated and the asset redelivered unconditionally, and fixed Rs.25,000/- as initial remuneration. The Advocate Commissioner could not trace the equipment; the respondent, duly served with notice, was set ex parte on 31.07.2025. Final order: Mr.Athin Roy, Legal Officer of Tata Capital Limited, appointed as Court Receiver to seize the equipment from the respondent wherever found, if required with police aid; applicant directed to initiate arbitration since the trigger notice had already been issued. Total dues per Statement of Account: Rs.6,83,174/-.

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Arb.Appln.No.816 of 2025

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 07.10.2025

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CORAM:

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THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

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Arbitration Application No.816 of 2025

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Tata Capital Limited, by its Associate Legal Remedial, R.Kamalakkannan, Having its office at 1^st Floor, Centennial Square, 6A-Dr.Ambedkar Salai, Kodambakkam, Chennai – 600 024.

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... Applicant

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Vs.

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Thambi and Associates Rep.by its Proprietor Mr.Thambi, 19 24 Peechi Kannara, Thrissur, Landmark – Kannara, Kerala – 680 652. ...Respondent

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Prayer: Arbitration Application filed under Order XIV Rule 8 of O.S.Rules read with Section 9(II) (b), (d) & (e) of Arbitration Act, 1996, to pass an order appointing an Advocate Commissioner to seize and deliver the Excavator JCB India Ltd., CEQ, - Catalog No.JS14OUFFAAFBB+1, JS 140 TRACKED EXC0.72CUM BKT RBC AC LL Model Chasis No.2439415, and Engine No.84259443 together with all accessories fitted to the vehicle lying at 19 24 Peechi Kannara, Thrissur, Landmark – Kannara, Kerala – 680

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Arb.Appln.No.816 of 2025

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652 more fully described hereunder, with police aid or break open the premises or from wherever found and handover the same to the applicant.

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SCHEDULE

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Excavator JCB India Ltd., CEQ, - Catalog No.JS14OUFFAAFBB+1, JS 140 TRACKED EXC 0.72CUM BKT RBC AC LL Model Chasis No.2439415, and Engine No.84259443 together with all accessories fitted to the vehicle lying at 19 24 Peechi Kannara, Thrissur, Landmark – Kannara, Kerala – 680 652.

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For Applicant : Mr.N.K.Vanan For Respondent : set ex parte on 31.07.2025 Advocate Commissioner : Mr.A.Rajadurai

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O R D E R

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This application has been filed under Section 9 of the Arbitration

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and Conciliation Act, 1996 (Act No.26 of 1996) seeking for appointment of an Advocate Commissioner to seize and deliver the equipment in possession of the respondent.

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

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"This application has been filed under Section 9 of the Arbitration and Conciliation Act, 1996, seeking for

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Arb.Appln.No.816 of 2025

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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.

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2. The applicant is a Non Banking Financial Institution. The applicant has lent money to the respondent under the Loan cum Hypothecation Agreement, dated 12.05.2023. The respondent had availed loan from the applicant for the purchase of equipment/asset morefully described in the schedule to the Judges Summons.

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3. The respondent is a defaulter in the repayment of the loan to the applicant. As on date, the respondent is in arrears of six (6) installments, which works out to Rs.3,54,890/-. The applicant has also recalled the loan granted to the respondent through their loan recall notice dated 16.10.2024. As seen from the Statement of Account, a sum of Rs.6,83,174/- 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, they commit 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 Loan-cumHypothecation Agreement, dated 12.05.2023 contains an arbitration clause. The applicant has expressed its willingness to go for arbitration in accordance with the arbitration clause.

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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 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:

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a) Mr.A. Rajadurai, Advocate, having office at

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Arb.Appln.No.816 of 2025

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No.17/F, Kaladipet, Thiruvottiyur, Chennai – 600 019, (Mobile No.9962806443) 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;

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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.

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c) On repossession of the subject equipment/asset, the Advocate Commissioner shall send a Communication to the respondent intimating that a sum of Rs.3,54,890/- is due and payable by the respondent to the applicant in respect of the aforesaid loan agreement.

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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.

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

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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.

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

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Post the matter on 31.07.2025."

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Arb.Appln.No.816 of 2025

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3. Pursuant to the above order, learned Advocate Commissioner has

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attempted to execute the warrant but however, learned Advocate Commissioner was not able to trace the equipment.

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4. Notice sent to the respondent was duly served and since the respondent did not choose to contest the case, the respondent was set e x parte by this Court by an order dated 31.07.2025.

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5. In view of the above, this Court appoints Mr.Athin Roy, Legal

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Officer, Tata Capital Limited, 1st Floor, Puturan Plaza, KPCC Junction, M.G.Road, Cochin, Kerala - 682011, Phone No.9207586591, as Court Receiver to seize the equipment from the respondent wherever it is found, if required with police aid. The applicant shall also initiate the process of arbitration since the trigger notice has already been issued.

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This application is disposed of in the above terms.

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07.10.2025

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Index: Yes/No Speaking Order/Non-Speaking Order Neutral Citation Case : Yes/No

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