Delhi District Court
File Has Been Taken Up Again In The Post ... vs Dhanvan Singh . -:: Page 1 Of 5 on 8 June, 2012
Suit Number : 485/11. Unique Case ID Number : 02403C0087302011. Indiabulls Financial Services Limited v. Dhanvan Singh. 08.06.2012. Present : As before. 1. File has been taken up again in the post lunch session for orders on the application under section 151 CPC filed on behalf of respondent for
setting aside the ex parte proceeding for reconsideration of order dated 13.04.2012.
2. Arguments on the same have already been heard earlier in the morning. Material on record, relevant provisions of law and the precedents on the point have been perused.
3. Counsel for the respondent, referring to the order dated 07.04.2012, has submitted that as undersigned/Presiding officer was on leave on 07.04.2012, he had been informed by the Court staff that the matter is listed for 10.05.2012 and even the same date is mentioned in the Court record as well as his own file and for this reason he had not appeared on 12.04.2012 and 13.04.2012. The order for appointment of receiver was made on 13.04.2012 in his absence on misrepresentation and fraud by the petitioner. The vehicle was subsequently repossessed by the petitioner in an unlawful manner on 21.05.2012 and therefore he had approached the Court on 23.05.2012 when the application under consideration as well as the written statement were filed on behalf of respondent. He has further submitted that the vehicle/tractor in question is not in a proper working condition as the tractor had some technical defect due to which it could not be used for a long Suit Number : 485/11.
Unique Case ID Number : 02403C0087302011.
Indiabulls Financial Services Ltd. versus Dhanvan Singh . -:: Page 1 of 5 ::-
time and he has also filed a civil suit against the petitioner here in before the Court at Agra regarding the same and for this reason the respondent is not liable to make any payment to the petitioner.. He has also submitted that when the vehicle was repossessed in a illegal manner by the petitioner, even the trolley and the articles were taken into unlawful possession by the receiver.
4. Application has been vehemently contested by the petitioner submitting that the averments of the respondent are wrong and petitioner was entitled to repossess the vehicle as there have been 3 defaults of the equated quarterly installments of Rs.31,408/- each by the respondent when the petition was filed. The petitioner has not committed any fraud in any manner and there has been no misrepresentation.
5. In order to consider the submissions made by the counsel for the respondent that the date of 10.05.2012 had been given on 07.04.2012 and the date of 10.05.2012 had been communicated to him, I have carefully perused the judicial record as well as the cause list of 07.04.2012, the peshi register of 07.04.2012, the peshi register of 12.04.2012 as well as the cause list and peshi register of 10.05.2012. (Copies of same are now marked as Mark A, B, C, D and E respectively which shall be a part and parcel of this order.)
6. It is clear from the order sheet dated 07.04.2012 that the case in question was adjourned for 12.04.2012 besides the other three cases of the same petitioner against other respondents and also similar other matters of other parties under section 9 of the Arbitration and Conciliation Act. The same facts are also revealed from the peshi register dated 07.04.2012 and 12.04.2012. The cause list and peshi register of 10.05.2012 doe not show that this case was listed on 10.05.2012. It does not appear to be correct that the Suit Number : 485/11.
Unique Case ID Number : 02403C0087302011.
Indiabulls Financial Services Ltd. versus Dhanvan Singh . -:: Page 2 of 5 ::-
Court staff has told a wrong date to the respondent.
7. Therefore, it can not be said that the date of 10.05.2012 had been given to the respondent since apparently respondent had failed to appear before the Court on 07.04.2012 as is clear from the appearance which is recorded in the file and it is slao not the duty of the petitioner to inform the respondent about the next date of hearing. The respondent should have checked and verified the date if he had any kind of confusion.
8. Further, I find from the written statement and application under consideration that the respondent has approached the Court only on 23.05.2012. If the averments of the respondent were correct that he had noted the date of 10.05.2012, then also he could have appeared on 10.05.2012 so that the matter could be taken up. However, it is clear that that respondent had not appeared on 10.05.2012 which make his contention that the date of 10.05.2012 was given on 07.04.2012 unbelievable.
9. Further, it is borne out from the records especially the copy of the RC which has been filed by the petitioner and as annexed at page number 37 of the documents of the petitioner as well as copy of the open cover note /insurance cover filed on behalf of the respondent today that the vehicle in question is hypothecated to the petitioner. Same fact is also borne out from the copy of the vehicle loan cum hypothecation agreement annexed at page numbers 17 to 36 that the loan was given by the petitioner to the respondent for purchase of the vehicle and the vehicle had been hypothecated to the petitioner. These documents are not in dispute. It is also clear from the same that the petitioner has the right to repossess the same in case any default in terms and conditions made by the respondent.
Suit Number : 485/11.
Unique Case ID Number : 02403C0087302011.
Indiabulls Financial Services Ltd. versus Dhanvan Singh . -:: Page 3 of 5 ::-
10. The respondent has submitted that he is not liable to make any payment to the petitioner as the tractor had some technical defect due to which it could not be used for a long time and he has also filed a civil suit against the petitioner here in before the Court at Agra regarding the same.
11. Respondent has also challenged the jurisdiction of this Court submitting that all the transaction have been conducted in Agra and the Court at Agra had only jurisdiction.
12. It is clear on perusal of the file that the petitioner has registered office in New Delhi and even the vehicle loan cum hypothecation agreement shows that the transaction had been made at Delhi on 30.04.2010. Therefore it is clear that the case is maintainable before this Court and the contention that this Court does not have the jurisdiction is not tenable.
13. It is also clear on perusal of the vehicle loan cum hypothecation agreement that the petitioner is not responsible in any manner regarding the conditions of the vehicle as more specifically mentioned in clause number 12 of the general terms, more specifically page number 32 of the documents of the petitioner, and therefore it can not be said as the vehicle was defective the respondent was not liable to make any payment and the petitioner could not have repossessed the vehicle.
14. Further the contention of the respondent that the petition has not been filed by a properly authorized person is also not tenable as it is clear from the copy of power of attorney annexed at pages numbers 12 to 16 of the documents annexed with the petition that Mr. Uttam Kumar is properly authorized to appear in respect of the present case.
Suit Number : 485/11.
Unique Case ID Number : 02403C0087302011.
Indiabulls Financial Services Ltd. versus Dhanvan Singh . -:: Page 4 of 5 ::-
15. As regards the submission of the respondent that when the vehicle was repossessed in a illegal manner by the petitioner, even the trolley and the articles were taken into unlawful possession by the receiver, I do not find any such mention in the inventory prepared at the time of repossession of the vehicle. The respondent has also failed to make any complaint to the petitioner, the police, the Court or any other authority that the trolley and the articles were taken into unlawful possession by the receiver and therefore, this contention does not prima facie appear to be believable.
16. Therefore, in view of the foregoing discussion, I do not find any cogent reason disclosed for release of the vehicle in favour of the respondent and the application of the respondent is accordingly declined.
17. As this is a petition only under section 9 of the Arbitration and Conciliation Act which is only an interim measure and as the arbitration has already been initiated by the petition, no further action is required in the present matter and the present proceedings are hereby closed. Both the sides may agitate their respective claims before the learned Arbitrator and may also initiate or contest for their legal rights, in any other forum, if advised.
18. Attested copies of the order be given to the parties, dasti, as requested.
19. After the completion of the formalities, the ahlmad shall consign the file to the record room.
Announced in the open court (NIVEDITA ANIL SHARMA) on this 08th day of June, 2012. ADJ-02, Wakf Tribunal, New Delhi.
Suit Number : 485/11.
Unique Case ID Number : 02403C0087302011.
Indiabulls Financial Services Ltd. versus Dhanvan Singh . -:: Page 5 of 5 ::-