ARBP1081.12 v. M/s.Praful Infrastructure Pvt. Ltd & Anr.
Case at a glance
- Bench
- R D DHANUKA
Provisions considered
Judgment
Ms.Shakuntala Joshi, i/b. S.I.Joshi & Co. for the Petitioner. None for the Respondents. CORAM : R.D. DHANUKA, J. DATE : 11 th OCTOBER, 2012 P.C. : The Learned Counsel appearing for the Petitioner tenders affidavit of service which indicates that the Respondent Nos. 1 and 2 have accepted the service through their son. None appeared for the Respondents. Affidavit of service is taken on record.
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 14th August, 2012, an ad-interim order was passed in the above Petition by this Court. The said order along with the petition is served on the Respondents and an Affidavit proving service dated 14th September, 2012 is on record. The petition is today taken up for final hearing. However, none appear for the Respondents. 2 ARBP1081.12
The Petitioner had provided a loan of Rs.26,84,000/- to the first Respondent under a Loan Agreement entered into on 27th June, 2011. The loan was repayable with interest at the rate of 8.39% per annum in 23 monthly installments of Rs. 1,36,300/-. 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 arrest. Clause 17 provides for arbitration. There has been a default on the part of the Respondents. The Respondents were liable to pay to the Petitioner a sum of Rs.20,92,438/-. The Petitioner has invoked the provision of arbitration.
In the present petition, the Petitioner has sought appointment of the Court Receiver as Receiver of the hypothecated Excavator, more particularly described in Exhibit-F to the Petition. In absence of any defence or contest by the Respondents, the averments contained in Petition would have to be accepted. There has been a default in 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 Excavator. The appointment of the Receiver is necessary in order to ensure that the Excavator 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 :- 3 ARBP1081.12 (i) Pending the hearing and final disposal of the arbitration proceedings, the Court Receiver is appointed as Receiver in respect of the Excavator, more particularly described in Exhibit F to the Petition, with direction to take forcible possession of the said Excavator with police assistance, if required, and without any prior notice to the Respondents.
(ii) The Court Receiver shall within a period of two weeks after taking possession, given an option to the Respondent in writing to act as agents of Receiver in respect of the said Excavator. The Respondents shall be given two weeks time by the Court Receiver from the date of receipt of the Court 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 4 ARBP1081.12 contained in the loan agreement (Exhibit A to the Petition). (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 sale of the Excavator by private treaty. (iv) Until the Receiver takes possession, there shall be an interim injunction restraining the Respondents from alienating, encumbering, parting with possession or creating any third party rights in respect of the Excavator described in Exhibit F to the Petition.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
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