Delhi District Court
Perfect Capital Services Ltd vs Sajid Khan on 1 May, 2024
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL DISTRICT JUDGE-01,
SOUTH DISTRICT, SAKET COURT, NEW DELHI
Arbitration Petition No.377/2024
Perfect Capital Services Ltd.
(Perfect Finance)
Branch office at :-
T24A,Green Park Extension,
Yusuf Sarai, New Delhi-110016
Through AR :- Sh. Pushpendra Dixit
....Petitioner
Versus
Sajid Khan
S/o Sarfuddin
R/o H. No.1488, Hauz Rani
Malviya Nagar, New Delhi
....Respondent
01.05.2024
Fresh arbitration petition received on assignment. It be
checked and registered.
ORDER
Present: Sh. Mohit Sharma, counsel for petitioner.
Heard.
The applicant/petitioner has filed the present application under Section 9 of the Arbitration and Conciliation Act, 1996 seeking interim relief in the nature of appointment of a Receiver to take possession of security make Splendor Plus I3S, bearing registration No.DL-3SFF-4691, Chassis no.6464, Engine no.41686.
2. It is averred in the application that the applicant/petitioner is a company incorporated and registered under the Companies Act 1956. It is, inter alia, engaged in the business of finance for various purposes. Further, the applicant/petitioner company authorized Sh.Pushpendra Dixit, Authorised Representative to file the present application and to do Arbtn. No.377/24 Perfect Capital Services Ltd Vs. Sajid Khan Page No.1 all the necessary acts and deeds in connection thereof.
3. It is further averred that the respondent made a representation to the applicant company at its office for availing loan facility of Rs.69,140/- for purchasing a vehicle. Consequent upon executed a Loan Agreement no.CT425676 dated 16.11.2022 and a loan of Rs.91,272/- was sanctioned and disbursed to the respondent. It is also averred that the respondent undertook to repay the loan amount in 24 installments of Rs.3,803/-.
4. It is further averred that after availing the said finance facility, the respondent failed to make the payment as per the Agreement and she committed willful defaults and as on date there is overdue of 12 installments. For this, the applicant sent a demand notice dated 05.04.2024 to the respondent, calling upon him to clear the dues in the sum of Rs.93,882/-, but the respondent failed to do so.
5. It is also averred that the applicant company duly notified the respondent to make the repayment of the outstanding amount and also hand over the peaceful possession of the machinery/vehicle but till filing date he has neither paid the due amount nor surrender the machinery/vehicle.
6. The applicant has also averred that the Hire purchase cum loan agreement which is executed between the parties in Clause IX provides for "Events of Defaults" in which the acts on the parts of the hirer cum loan is defined as defaults and in Clause X provides for "Rights and Remedies of Lender" in which the rights of the applicant company is defined in case of the default of the respondent.
7. As per the applicant, there is a clear prima facie case in its favour. It is, thus, prayed that Mr. Zeshan Ahmad, Assistant Branch Manager in the applicant company may be appointed as the Receiver, with the direction to take possession of the vehicle in question from the Arbtn. No.377/24 Perfect Capital Services Ltd Vs. Sajid Khan Page No.2 respondent, his agent or any other person found in possession of the said vehicle. Directions to the concerned SHO of the area where the vehicle is found, are also prayed for, in order to enable the Receiver to take possession of the said vehicle. Further, the applicant company has also prayed that the Receiver may be allowed to deal with the said vehicle as per the orders/directions of the Arbitral Tribunal.
8. I have heard the learned counsel for the applicant/petitioner. I have also perused the documents filed on record.
9. Perusal of record reveals that copy of the Loan Agreement executed between the applicant company and the respondent. One of the article of the said Agreement pertains to reference to a Sole Arbitrator in case of a dispute. Further, Schedule I lays down the payment modalities. As per the statement of account the first installment was paid on 31.12.2022.
10. Further, the legal demand notice stated to have been sent by the applicant to the respondent, alongwith the postal receipt. Copy of the office ID card of the proposed Receiver Mr. Zeshan Ahmad, Assistant Branch Manager in the applicant company has been filed. As per the applicant, the respondent defaulted in the payment of 12 installments. The Statement of Account shows that the total amount receivable from the respondent is Rs.93,882/-.
11. Further, in the case of ICICI Bank Limited v. Updesh Nagar (FAO 7/2016 decided on 05.01.2016), the Hon'ble Delhi High Court set aside the impugned order refusing to appoint a Receiver at the exparte stage. The Hon'ble Court appointed a Receiver in the said case and observed that:"..... if, what the appellant says is correct, each day's delay in repayment of the loan is causing prejudice to the appellant. The appellant/plaintiff is a bank which, essentially, deals with public funds and therefore, cannot be left at a loosened to protect its security. The only Arbtn. No.377/24 Perfect Capital Services Ltd Vs. Sajid Khan Page No.3 security, as contended by the counsel for the appellant/ plaintiff, qua the loan disbursed to the respondent/defendant, is the aforementioned vehicle."
12. In view of the aforesaid proposition of law and the fact that the respondent is stated to be a defaulter in payment of installments of the loan amount, the apprehension of the applicant/petitioner that the vehicle in question may be disposed off by the respondent during pendency of the dispute is not totally misconceived. Further, any delay in grant of interim relief may defeat the very object of filing the present application. Accordingly, this court is satisfied that the applicant/petitioner has been successful in making out a prima facie case for appointment of a Receiver ex-parte. In this regard, guidelines laid down by the Hon'ble Delhi High Court in the case of Kotak Mahindra Prime Ltd. Vs. Kamal Chauhan & Anr. (O.M.P. (I) No. 540/2015 & I.A. No. 25026/2015, decided on 23.12.2015) are taken into consideration and accordingly, the following directions are being passed:
(i) Sh. Zeshan Ahmad, Assistant Branch Manager of the applicant company (as per the copy of the Identity Card) is hereby appointed as Receiver in the present case to take possession of the vehicle in question i.e. Splendor Plus I3S, bearing registration No.DL-3SFF-4691, Chassis no.6464, Engine no.41686 from the respondent, his agents or any other person found in possession of the vehicle.
(ii) The Receiver shall file his affidavit to the effect that he is working with the applicant company as Recovery Manager, in the court or send the same on the dedicated email ID of the court i.e. [email protected] within seven days of passing of this order.
(iii) The Receiver shall take over the possession of the vehicle from the respondent at the address(es) given in the loan application. If the vehicle is not available at the said address(es), the Receiver shall be at liberty to Arbtn. No.377/24 Perfect Capital Services Ltd Vs. Sajid Khan Page No.4 recover the vehicle wherever found. However, the Receiver shall not stop a running vehicle on the road to forcibly take out the driver to take the possession of the vehicle. The Receiver shall also not make any attempt to block the passage of the vehicle to bring it to a halt to take its possession.
(iv) The Receiver shall avoid taking the possession of the vehicle if the vehicle is occupied by a woman who is not accompanied by a male member, or an elderly, infirm or physically/mentally challenged person.
In such cases, the Receiver shall take the possession of the vehicle from the borrower's residence.
(v) The Receiver shall also ensure that the repossession of the vehicle does not result in any breach of peace. In the event of any breach of peace, the Receiver shall not proceed without assistance of police.
(vi) At the time of taking the custody of the vehicle, the Receiver shall deliver a copy of this order to the person from whom the possession is taken.
(vii) At the time of taking the custody of the vehicle, the Receiver shall take the photographs of the vehicle from different angles alongwith the person(s) occupying the vehicle as well as the place of taking over the possession.
(viii) The Receiver shall prepare an inventory of the articles/accessories found in the vehicle and shall furnish the copy of the inventory to the person from whom the possession is taken. The applicant/petitioner shall send the same on the aforesaid email ID of the court, alongwith its report.
(ix) After taking the vehicle in possession, the Receiver shall keep the vehicle in safe custody.
(x) If the respondent makes payment of the outstanding installments as on the date of possession, the Receiver shall release the vehicle in question to the respondent on superdari subject to an undertaking by the respondent to the Receiver for regular repayment of future monthly installments till Arbtn. No.377/24 Perfect Capital Services Ltd Vs. Sajid Khan Page No.5 the expiry of the tenure and a declaration not to part with the vehicle or create third party interest in the vehicle until the entire amount is paid.
(xi) If the respondent is not in a position to clear the entire outstanding installments, the Receiver shall give him another opportunity to pay the outstanding installments within 30 days of taking over the possession of the vehicle and in case the respondent makes the payment of the outstanding installments within the said period, the Receiver shall release the vehicle to the respondent subject to an undertaking as aforementioned.
(xii) If the respondent does not make the payment of the outstanding amount to the applicant/petitioner within 60 days, the Receiver, with the prior permission of the Arbitrator, would be authorized to sell the vehicle in question in a public auction with prior written notice (to be sent by Speed Post AD) of the date of auction to the respondent at the address(es) mentioned in the loan agreement or the address from where the vehicle is taken into possession so that the respondent may also be able to participate in the auction to enable the applicant to fetch maximum amount from the sale of the vehicle. The Receiver shall carry out video recording of the auction proceedings and shall submit the same before the Arbitrator along with his final report.
(xiii) The vehicle in question shall not be sold or disposed of or the possession thereof parted with without due permission of the Court.
(xiv) In case the respondent clears all the due installments before such repossession, the vehicle shall not be repossessed.
(xv) The Receiver shall inform the respondent about the option of resolving the dispute amicably by settlement before the Mediation Centre, Saket Court Complex, Delhi and shall also provide a copy of this order to the respondent at the time of repossessing the vehicle. (xvi) The applicant/petitioner shall refer the dispute to arbitration in terms of clause 16 of the Loan Agreement, if not already referred, for Arbtn. No.377/24 Perfect Capital Services Ltd Vs. Sajid Khan Page No.6 appointment of an Arbitrator within four weeks from today, and inform the Court in writing about the same.
(xvii) The Receiver shall submit his report on the aforementioned dedicated email ID of the court within 10 days of taking the custody of the vehicle, alongwith the photographs and inventory mentioned above. (xviii) In case the matter is referred to arbitration after this order, then the Receiver shall submit a copy of his report to the learned Arbitrator. Even in case the matter has already been referred, then also such report shall be filed before the learned Arbitrator.
(xix) The learned Arbitrator shall decide the dispute referred for arbitration, uninfluenced by the present order.
(xx) The parties are at liberty to apply to the learned Arbitrator for modification of this order.
(xxi) This order shall remain in force till either the respondent makes the payment of the loan amount or till it is modified by the learned Arbitrator during arbitration proceedings or till the termination of the arbitration proceedings.
13. With the aforesaid directions, the present application accordingly stands disposed off. The applicant/petitioner is directed to get this order served upon the respondent through electronic modes i.e. email and Whatsapp within 7 days from today and file its affidavit of compliance on record, alongwith the proof of service within 10 days from today.
14. File be consigned to Record Room after due compliance.
Digitally signedPURVA by PURVA SAREEN SAREEN Date: 2024.05.03 10:30:04 +0530 Announced in the open (Purva Sareen) court on 01.05.2024 Additional District Judge-01, (South) Saket District Courts, New Delhi Arbtn. No.377/24 Perfect Capital Services Ltd Vs. Sajid Khan Page No.7