Delhi District Court
Tata Capital Ltd vs Wasim Akaram on 2 September, 2024
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE/COMMERCIAL COURT/-07/CENTRAL: DELHI
CNR NO. DLCT010100982024
OMP(I)(COMM) NO. 588/2024
TATA CAPITAL LTD.
HAVING ITS REGISTERED OFFICE AT:
11TH Floor, tower A. Peninsula Business Park,
Ganpat Rao Kadam Marg, Lower Parel,
Mumbai-400013,
AND BRANCH OFFICE AT:
7TH Floor, Videocon tower, Block E-1,
Jhandewalan Extension,'
New Delhi.
Through Authorized Representative,
Mr. Mandeep Sharma,
........ Petitioner
Versus
1. Mr. Wasim Akaram,,
S/o Ikramuiddin,
House No. 156, Chandan hulla,
Chandan Hola , South Delhi-110074
Contact No.:9654893640
Email ID: [email protected]
2. Rehana,
House No. 156, Chandan Hulla,
Chandan Hola , South Delhi-110074
3. Sharukh Khan,
House No. 156, Chandan Hulla,
Digitally
signed by
MUKESH
Chandan Hola , South Delhi-110074
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2024.09.02
17:19:12
+0530
Omp (1) Comm. No.588/24 TATA CAPITAL LTD. VS. WASIM AKARAM. 1/6
Date of Receipt of Petition :05.07.2024
First date before the undersigned:08.07.2024
Date of Arguments : 02.09.2024
Date of Decision : 02.09.2024
Appearance(s): Sh. Anish Bhola, Ld. Counsel for the petitioner.
None for respondent.
JUDGMENT/ORDER
1. By way of present order, I shall conscientiously dispose of the present petition under Section 9 of the Arbitration and Conciliation Act, 1996 for appointment of Sh. Nitin Sharma, representative of the petitioner company as a receiver to take possession of the vehicle bearing registration No. DL1LAL7866, make "TATA MOTORS LTD.,- CEQ 709G LPT DCR38HSD 85B6M5 XDL, Engine No. 38SG183GWX802814 and Chassis No. MAT810022P8G10732" from the respondent, his agents or any other person found to be in possession of the same. The applicant/petitioner has also prayed for other relief including grant of police aid, if so required, to direct the respondent to disclose his list of immovable assets and to furnish security to the extent of claim amount.
2. Eschewing prolix details to the pleadings crystallizing the same, petitioner bank is stated to be a banking company incorporated under the Companies Act, 1956, and is stated to be involved in financial activities including disbursement and grant of loan and other allied activities. The present petition has been instituted through Mr. Nitin Sharma, who is stated to be the authorized representative and attorney of the petitioner's company and authorised to file, sign, verify the present petition and to engage advocate, lead Digitally signed by MUKESH evidence, swear affidavit, appear before the court and to attend the proceedings MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.02 17:19:22 and to do all the necessary acts on behalf of petitioner bank vide resolution +0530 Omp (1) Comm. No.588/24 TATA CAPITAL LTD. VS. WASIM AKARAM. 2/6 dated 11.03.2024. It is the case of the petitioner that the respondent approached the petitioner bank for grant of loan facility for financing a vehicle pursuant to which a Loan Agreement bearing no. TCFCV0310000012422332 is stated to have been executed between the parties and an amount of Rs.16,30,679/- was disbursed. The necessary documents including the hypothecation of the vehicle were also executed alongwith the agreement. The respondent purchased the subject vehicle mentioned aforesaid out of the aforesaid amount so disbursed by the petitioner.
3. It is the case of the petitioner that the respondent has failed to adhere to financial discipline and defaulted in making payment of Rs.84,506/- towards 2 Equated Monthly Installment (EMI) out of total 59 EMIs. The loan was foreclosed and as per the Statement of Account and foreclosure letter filed on record, a sum of Rs.16,32,470/- was due at the time of filing of the present petition. The agreement contained an arbitration clause that in case of dispute with the seat of the arbitration within the territorial jurisdiction of this court. Hence, the present petition for preservation and interim custody of the subject vehicle, on the apprehension that the same would be wasted and disposed of by the respondent before commencement of the arbitration proceedings or till the time the arbitration award so passed, is enforced in accordance with law.
4. Alongwith the aforesaid petition, an application U/s 9 of Arbitration & Conciliation Act for interim protection was also filed. The said application was disposed of by the this court vide order dated 09.07.2024 and one Mr. Nitin Sharma, representative of the plaintiff company was appointed as a receiver to take over the possession of the subject vehicle and notice was ordered to be issued to the respondent for 02.09.2024.
5. However, the respondent has failed to appear despite service on 02.09.2024 and accordingly he was proceeded with exparte on the same date.
Digitally
signed by
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2024.09.02
17:19:30
+0530
Omp (1) Comm. No.588/24 TATA CAPITAL LTD. VS. WASIM AKARAM. 3/6
9. I have heard arguments in the matter and have perused the record including the documents filed by the petitioner and given my thoughtful consideration to the same.
10. The loan agreement between the parties has an arbitration article/clause in clause 28. This court has jurisdiction to decide the question forming subject matter of arbitration in terms of Section 2(e) of the Act, and the seat of Arbitration is found within the territorial jurisdiction of this court. Therefore, the contention raised by Ld. Counsel for the petitioner is accepted that the present petition is maintainable before this Court.
11. Attention of the court is further drawn to the judgment of Hon'ble High Court of Delhi in case bearing No. FAO OS 117/2002 titled City Bank V/s Udesh Kumar and FAO (OS) 260/2002 titled M/s Kotak Mahindra Finance Ltd. V/s Surinder Singh & Ors. as also C.R.P. No. 223/2004 titled as Standard Chartered Bank V/s Devender Nagar wherein our Hon'ble High Court has laid down that an ex-parte order in such cases as a measure of interim protection to obtain custody of the vehicle in question pending the arbitration proceedings shall be justified. The aforesaid preposition of law has further been reiterated by the Hon'ble Apex Court in (2006) 2 SCC 598 in Orix Auto Finance (India) Ltd. V/s Jagmander Singh & Anr. where the Hon'ble Supreme Court has observed that:-
"If the agreement permits the financier to take possession of the financed vehicle, there is no legal impediment in such possession being taken."
12. It is vehemently contended that petitioner is likely to suffer irreparable loss, if the interim order dated 09.07.2024 appointing the receiver to take possession of the subject vehicle from the defaulting respondent is not made absolute and the same may also defeat the very purpose of protection available MUKESH by Digitally signed MUKESH KUMAR GUPTA to a party u/s 9 of the Arbitration and Conciliation Act, 1996 . It is further KUMAR Date:
contended that the respondent was in default of the outstanding payment of 2024.09.02 GUPTA 17:19:39 +0530 Omp (1) Comm. No.588/24 TATA CAPITAL LTD. VS. WASIM AKARAM. 4/6 Rs.16, 32,470/- towards the subject loan which he was required to repay the petitioner in equated monthly installments. Further, despite indulgence of the petitioner on the assurances given by the respondent, he has deliberately violated the EMIs schedule and as such as per the accounts maintained by the petitioner company, respondent was liable to pay a sum of Rs.16,32,470/- towards principal, interest, penal interest and other dues as on date of institution of the petition which as per the statement of account filed on record on 04.06.2024 has reached Rs. 16,32,470/-.
13. Considering the submission made, the preposition of law discussed aforesaid and the fact that the respondent is defaulter to the tune of Rs. 16,32,470/-, the likelihood that the subject vehicle may be disposed of by him could not have been completely ruled out. As such, the contentions raised by the petitioner are not totally mis-conceived. Further more, the respondent is a defaulter of agreed EMIs and the court has already considered the circumstances at the time of passing of ad-interim orders. The respondent was granted opportunity to respond and bring before the court his contention refuting the allegations raised by the petitioner which he has failed to avail despite due service. As already discussed, an interim relief is available under Section 9 of the Act if the action or proposed action of other party is either in breach of the terms of agreement or militates against equity, fair play or natural justice, reliance placed on AIR 2002 Del. 50 Baby Arya Vs. Delhi Vidyut Board .
14. In view of the aforesaid discussion, the court is satisfied that the petitioner has been successful in making out a prima facie case for grant of interim relief as claimed in the petition. More so, when the respondent has preferred not to put in any appearance before the court despite service of the notice on 30.07.2024 nor to submit any reply to the present petition, the ad- Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA interim order passed by this court on 09.07.2024 is liable to be made absolute. Date:
GUPTA 2024.09.02
17:19:47
+0530
Omp (1) Comm. No.588/24 TATA CAPITAL LTD. VS. WASIM AKARAM. 5/6
Accordingly, the interim order dated 09.07.2024 passed by this court is made absolute however subject to the result and decision of arbitration proceedings between the parties in terms of Clause 28 of the agreement dated 27.10.2023.
16. With the aforesaid directions, the present petition stands disposed of accordingly.
17.. File be consigned to record room after due completion.
Digitally signedMUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.02 17:19:55 +0530 (MUKESH KUMAR GUPTA) DATED 02.09.2024 DISTRICT JUDGE (COMM.COURT)/-7 PRONOUNCED IN THE CENTRAL/DELHI OPEN COURT Omp (1) Comm. No.588/24 TATA CAPITAL LTD. VS. WASIM AKARAM. 6/6