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Kerala High Court

Ajikumar A vs Hdb Financial Services Ltd on 6 June, 2022

Author: C.S.Dias

Bench: C.S.Dias

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
   MONDAY, THE 6TH DAY OF JUNE 2022 / 16TH JYAISHTA, 1944
                     OP(C) NO. 814 OF 2022

   IN CMA(Arb) 42/2022 OF PRINCIPAL SUB COURT/ COMMERCIAL
                  COURT, THIRUVANANTHAPURAM
PETITIONERS:

    1     AJIKUMAR A,
          AGED 37 YEARS,
          S/O ARJUNAN K, ANEESH BHAVAN,
          KOLLAKONAM, KULATHUMMAL KURUTHAMCODE,
          THIRUVANATHAPURAM , PIN - 695527

    2     ABIMON.A,
          AGED 27 YEARS,
          S/O.ALBERT, ANIL BHAVAN, KALIYODU,
          MUTUTHIYAVILA, KOTTAKKADA P.O,
          KULATHUMMAL, THIRUVANANTHAPURAM ,
          PIN - 695572

          BY ADVS.   ANJANA KANNATH
                     CHITHRA LAL M.R

RESPONDENT:

          HDB FINANCIAL SERVICES LTD,
          ZENITH HOUSE, GROUND FLOOR, OPPOSITE MAHALAKSHMI
          RACE COURSE, KESHAV KHADE MARG, MAHALAXMI- HAVING
          ITS BRANCH OFFICE AT SPRINGS, 1ST FLOOR, NEAR
          RELIANCE FRESH, EDAPPAZHINJI, THYCAUD P.O,
          THIRUVANANTHAPURAM,
          REPRESENTED BY ITS AUTHORIZED OFFICER,
          PIN - 695014.

      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C)No.814/2022

                                    -:2:-



                     Dated this the 6th day of June,2022

                           JUDGMENT

The original petition is filed to set aside Ext.P1 order passed by the Court of the Principal Subordinate Judge,(Commercial Court), Thiruvananthapuram in I.A.No.1/2022 in CMA(Arb)No.42/2022.

2. The petitioners' case, in brief, in the memorandum of original petition is that; the first petitioner had entered into a loan agreement with the respondent. The second petitioner is the surety. The first petitioner was making monthly instalments in time. However, due to the pandemic, he had defaulted in five instalments. Now, the petitioners have received Ext.P1 notice from the Commercial Court, to take possession of the vehicle. An Advocate Commissioner has taken possession of the first petitioner's commercial vehicle and filed Ext.P2 report before the above Court. The petitioners have not received any notice till date in the proceeding. The petitioners have received Ext.P3 O.P.(C)No.814/2022 -:3:- auction notice from the Bank. The petitioners have filed Ext.P4 application to obtain the copy of the award. The petitioners are ready and willing to settle all the disputes with the respondent. However, the respondent would now sell the vehicle, which would severe prejudice and hardship to the petitioners. Hence, the original petition.

3. This Court had by order dated 06.05.2022, issued notice to the respondent and passed an interim order directing the auctioning of the vehicle, as indicated in Ext.P3 letter, to be kept in abeyance for a period of one month, on condition that the petitioners' deposit an amount of Rs.2,00,000/- within a period of two weeks from the date of order.

4. Today, when this original petition was taken up, Sri. Achuthan proposed to enter appearance on behalf of the respondent.

5. Heard; Kum. Anjana Kannath, the learned counsel appearing for the petitioners and Sri. Achuthan, O.P.(C)No.814/2022 -:4:- the learned counsel appearing for the respondent.

6. On a perusal of Ext.P4, it can be seen that an interim award has been passed by the Arbitrator under Section 17 of the Arbitration and Conciliation Act, 1996(in short, Act'). It is to enforce the interim award, the respondent had filed Ext.P4 before the Commercial Court to appoint an Advocate Commissioner and take possession of the vehicle.

7. Section 37(2)(b) of the Act, specifically provides an appellate remedy against an order granting an interim measure under Section 17 of the Act.

8. The Hon'ble Supreme Court in Bhaven Construction v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd&[(2002) 1 SCC 75], has categorically held that the High Courts should not interfere with the arbitraral process filed under the Act, when an appeal/remedy is provided, since the Act is a self contained one.

9. In the light of Section 37 of the Act read with O.P.(C)No.814/2022 -:5:- the ratio laid down in Bhaven Construction's case(Supra), I am of the firm view that the original petition is not maintainable. Nevertheless, since this Court has already ordered the sale of the vehicle to be kept in abeyance and the petitioners have complied with the condition therein, I am of the firm view that the interim order dated 06.05.2022 can be enlarged for a further period of one month, to enable the petitioners to work out their remedies as contemplated under the Act.

In the result, the original petition is disposed of by relegating the petitioners to work out their statutory remedies, as provided under the Act, with the rider that the interim order dated 06.05.2022, shall remain in force for a further period of one month from today.

Sd/-

                                                C.S.DIAS,JUDGE

DST/06.06.22                                                     //True copy/

                                                                 P.A.To Judge
 O.P.(C)No.814/2022

                             -:6:-




                           APPENDIX


PETITIONER EXHIBITS:


EXHIBIT P1           A TRUE COPY OF THE ORDER OF THE COURT

OF THE PRINCIPAL SUB JUDGE (COMMERCIAL COURT), THIRUVANANTHAPURAM IN IA.NO.1/2022 IN CMA (ARB) NO. 42/2022 DATED 14.02.2022 EXHIBIT2 A TRUE COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER DATED 30.03.2022 BEFORE THE PRINCIPAL SUB JUDGE (COMMERCIAL COURT), THIRUVANANTHAPURAM IN IA.NO.1/2022 IN CMA (ARB) NO.

EXHIBIT3 A TRUE COPY OF THE COMMUNICATION DATED 16.04.2022 ISSUED BY THE RESPONDENT BANK EXHIBIT P4 A TRUE COPY OF THE PETITION FILED BY THE RESPONDENT BEFORE PRINCIPAL SUB JUDGE (COMMERCIAL COURT), THIRUVANANTHAPURAM AS CMA (ARB) NO.

RESPONDENT'S EXHIBITS: NIL