Calcutta High Court
Srei Equipment Finance Limited vs Mohammad Shahabuddin Ansari & Anr on 19 July, 2018
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
OD-8
AP 398 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SREI EQUIPMENT FINANCE LIMITED
VERSUS
MOHAMMAD SHAHABUDDIN ANSARI & ANR.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 19th July, 2018.
Appearance:
Mr. Swatarup Banerjee, Adv.
Ms. S. Chakraborty, Adv.
The Court : This is an application under Section 9 of the
Arbitration and Conciliation Act, 1996, as amended by Act 3 of
2016 (in short, "the Act of 1996").
From the affidavit of service filed on behalf of the
petitioner, it appears that copies of this application have been
forwarded to both the respondents who reside at the adjoining
premises and the respondent no.2 as the guarantor has received the same. Since both the respondents are residing at the adjoining premises and the respondent no.2 has received the copy of the application, it may be presumed that the respondent no.1 is aware of filing of this application by the petitioner. However, none appears on behalf of any of the respondents to oppose this 2 application. Accordingly, this application is taken up for hearing in the absence of the respondents.
Let the said affidavit filed by the petitioner be kept on record.
It is the case of the petitioner that in terms of the agreement dated September 22, 2014 entered into between the parties (hereinafter referred to as 'the said agreement'), the respondent No. 1 obtained financial assistance of Rs.16,60,257/- from the petitioner for one asset, described in paragraph 3 of the application. The said asset remains hypothecated in favour of the petitioner. The respondent No. 2, as the guarantor, is a party to the said agreement, which also contains an arbitration agreement.
Under the said agreement the respondent no.1 is obliged to repay the loan amount, together with agreed rate of interest and other charges by way of 45 monthly instalments of Rs.47,778/- each. However, after paying the first 20 instalments and part of the 21st instalment, the respondent No. 1 has failed to pay the balance instalments.
According to the petitioner, as on the date of filing of this application, Rs.18,07,012.41 remains due and owing by the respondents to the petitioner but in spite of repeated requests they have refused to pay the said amount. Therefore, the petitioner has terminated the said agreement and filed this application to enforce its right to take possession of the hypothecated asset through appointment of a Receiver. 3
Having considered the materials on record, I find that the petitioner has made out a prima facie case for obtaining an ad interim ex parte order for appointment of Receiver to take possession of the hypothecated asset, described in paragraph 3 of the application, presently lying at Brahmapur, district - Buxar, in the State of Bihar.
Accordingly, Mr. Srinibash Misra, Advocate, Bar Association, Room No.16, is appointed the Receiver to take actual physical possession of the hypothecated asset, described in paragraph 3 of the application from the concerned respondent at Brahmapur, district - Buxar, in the State of Bihar. After taking possession of the hypothecated asset, the Receiver shall keep the same, in his custody, at a safe place to be provided by the petitioner.
The Receiver shall be paid an initial remuneration of 1800 GMs by the petitioner. The petitioner shall also bear the travelling expenses of the Receiver and shall provide him a befitting accommodation at the relevant places in the State of Bihar. Needless to mention that a competent officer of the petitioner shall all along accompany the Receiver in the State of Bihar.
If necessary, the Receiver shall approach the Superintendent of Police of the concerned District for obtaining police assistance to implement this order. If the petitioner deposits the requisite fees with the concerned authorities, the Superintendent of Police of the concerned District shall render necessary police 4 assistance to the Receiver to take actual physical possession of the hypothecated asset from the concerned respondent.
Let this application appear after four weeks from date. The Receiver shall file his report on the next date of hearing.
Urgent certified website copy of this order, if applied for, be made available to the parties subject to compliance with the requisite formalities.
All parties, including the Receiver and the concerned police authorities shall act on the copy of the certified website copy of this order.
(ASHIS KUMAR CHAKRABORTY, J.) sp2.