Delhi District Court
Mahindra & Mahindra Financial Services ... vs Suresh Aggarwal on 26 February, 2010
Page 1
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE -VI
cum ADDL.SESSIONS JUDGE (EAST), KARKARDOOMA
COURTS, DELHI.
Suit No.261/2009
Mahindra & Mahindra Financial Services Ltd.
th
508, 5 Floor, District Centre,
Laxmi Nagar, Delhi110092. ..... Petitioner
Versus
Suresh Aggarwal,
Son of C.B. Aggarwal,
B245, Avantika, Sector1,
Rohini, New Delhi110085. ...... Respondent
O R D E R
The petitioner has filed the present application under Section 9 of the Arbitration and Conciliation Act, 1996 with prayer to appoint Shri Lalit Vashisht, Customer Manager of the petitioner company, as receiver to take possession of the hypothecated vehicle, bearing registration No.DL 4C NB3432, make Mahindra Scorpio 2.6 Turbo, bearing Chasis No.MA1TB2BSL82J67317 Engine No.BS84G32793.
2 It is alleged in the petition that the petitioner is a limited company, incorporated under the Companies Act, 1956, having its Page 2 registered office at Gateway Building, Apollo Bunder, Mumbai400 001. The company is having one of its branch office at 508, Vth Floor, District Centre, Laxmi Nagar, Delhi110092. Mr. Anil Kumar Sharma, Legal Executive of the company, is well conversant with the facts of the case and has been authorized by the petitioner company to sign, institute, verify and to pursue the proceedings of the petition. 3 The Legal Executive of the petitioner company has further submitted that on the representation being made by the respondent to purchase a vehicle, the petitioner company advanced the loan of Rs.6,95,000/ (Rupees six lac ninety five thousand only) by executing agreement bearing No.883195 dated 6.10.2008. From the loan advanced to him, the respondent purchased a second hand vehicle, bearing registration No.DL 4C NB3432, make Mahindra Scorpio 2.6 Turbo, bearing Chasis No.MA1TB2BSL82J67317 Engine No.BS84G32793. The loan amount was to be repaid by the respondent to the petitioner company in 47 monthly installments of Rs.18898/ (Rupees eighteen thousand eight hundred and ninety eight only). After Page 3 availing the facility of loan and enjoying the possession of the vehicle, the respondent Suresh Aggarwal failed to adhere to the financial discipline and committed willful defaults in making payment of installments. As the respondent failed to repay the loan, the loan agreement was terminated by the petitioner vide termination notice dated 23.12.2008. As per the statement of account maintained by the petitioner company, the respondent is liable to pay a sum of Rs.7,83,314/ (Rupees seven lac eighty three thousand three hundred and fourteen only) to the petitioner company as on 15.4.2009. The loan agreement contained arbitration clause which the petitioner intended to invoke. The petitioner had the apprehension that the respondent may dispose of the vehicle. The Legal Executive of the petitioner company has submitted that if the respondent succeeds in disposing of the vehicle in question, the petitioner company shall suffer irreparable loss and injury.
4 Vide exparte order dated 16.4.2009, Shri Lalit Vashisht was appointed as receiver to take possession of the hypothecated Page 4 vehicle, i.e., bearing registration No.DL 4C NB3432, make Mahindra Scorpio 2.6 Turbo, bearing Chasis No.MA1TB2BSL82J67317 Engine No.BS84G32793.
5 The respondent could not be served through ordinary process. The process issued to him either through process server or through registered AD, received back without executing the service upon the respondent. Thereafter, the counsel for the petitioner made request to the court for the substituted service of the respondent. The request of the counsel for the petitioner was allowed vide order dated 12.12.2009 and only then, the service upon the respondent could be effected through publication in the newspaper "Statesman". The respondent was duly served for his appearance in the court on 11.2.2010. As the respondent failed to appear in the court till 3.30 PM despite waiting since morning, she was therefore, proceeded exparte vide order of the said date. The exparte arguments of the learned counsel for the petitioner were heard on 23.2.2010.
Page 5 6 The perusal of the record shows that the agreement entered into between the petitioner and the respondent bears the arbitration clause. Clause 27 of the agreement reads as under: "Subject to the provisions of clause 26 above, any suit, petition, reference or other filing permitted or required to be made pursuant to the Arbitration and Conciliation Act, 1996 in respect of the matters arising out of this Agreement including, without limitation, a petition for appointment of an arbitrator or arbitrators under Section 11 of the Arbitration and Conciliation Act, 1996 shall be instituted only in competent Courts at Mumbai."
7 As per clause 27 of the agreement, it is clear that this Court is not having jurisdiction to try and entertain the present petition. It is clearly mentioned in the agreement that any petition under the Arbitration and Conciliation Act can be filed only before the competent Court at Mumbai. The petitioner itself has incorporated the clause 27 in the agreement vide which the arbitration can be invoked only in the competent court at Mumbai, therefore, the petitioner cannot be permitted to back out from its own clause in agreement. Consequently, Page 6 it is held that this Court is not having any jurisdiction to try the present petition.
8 Thus, the present petition filed by the petitioner company under Section 9 of Arbitration Act, is hereby dismissed, being not maintainable.
9 The receiver's report shows that the vehicle in question has already been repossessed by the company on 26.4.2009. Since, the petition has already been dismissed for the want of jurisdiction, therefore, the petitioner is directed to restore back the vehicle in question to the respondent immediately.
File be consigned to the record room.
Announced in the open Court ( P.S. TEJI )
Dated: 26.2.2010 District JudgeVI (East)
cum Addl. Sessions Judge
Karkardooma Courts : Delhi